General Terms and Conditions
1.1. TIKI Safety produces and sells products for breathing safety classified as PPE (Personal Protection Equipment) (the “Products”).
1.2. The Products comprise intellectual property rights (“IPR”) and unpublished information relating to inter alia the design, construction and properties of the Products (“Know-How”). The Products are marketed and distributed under Trademarks detailed by a Brand Guideline.
1.3. Any right for the Buyer to resell and/or redistribute the Products shall be limited to the geographical area indicated in the order confirmation documents (the “Territory”) and all such actions be subject to these Terms and Conditions and other specific written agreements between the Parties.
2.1. Orders are placed by the Buyer to TIKI Safety by mail or by e-mail. Orders sent to TIKI Safety shall be binding on the Buyer. TIKI Safety will confirm the order by mail, e-mail or by issuing an invoice. TIKI Safety may reject Orders which accordingly will not be confirmed. Upon payment of the first invoice (see below) the order shall be binding on TIKI Safety.
2.2. TIKI Safety does not undertake to deliver beyond the limits of the production capacity or the availability of production components. This limit will be addressed, if relevant, in each order confirmation.
2.3. Orders may not be cancelled by the Buyer unless TIKI Safety has consented in writing to such cancellation in which case the Buyer, unless otherwise agreed, must compensate TIKI Safety for any and all costs and losses of TIKI Safety associated with said cancelled order.
3.1. All deliveries are made EX-WORKS, pursuant to INCOTERMS 2010, unless otherwise agreed upon in writing.
3.2. TIKI Safety reserves the right to postpone and reschedule deliveries and to make partial delivery on confirmed orders. While TIKI Safety shall use reasonable endeavours to make timely delivery, time of delivery will however not be of the essence and accordingly, TIKI Safety shall have limited liability to the Buyer if, notwithstanding such endeavours, there is any delay in delivery. TIKI Safety shall in the event of delay of delivery of Products be liable only for the reasonable and documented out of pocket costs of the Buyer which will not include costs for substitutes for Products. In case of incomplete or faulty delivery, the Buyer’s exclusive remedy is redelivery of a correct consignment, and TIKI Safety shall have no further liability.
3.3. If the Buyer fails to accept Products ordered at the delivery date set out, despite written notice from TIKI Safety and providing that this failure is not caused by force majeure, TIKI Safety is entitled in its discretion to decide whether to store, insured or non-insured, the Products appropriated for said delivery at the sole cost of the Buyer or to dispose of the Products appropriated for said delivery to the Buyer to any third Party and postpone delivery to the Buyer pursuant to availability.
3.4. Sales and deliveries of TIKI Safety’s Products to the Buyer shall be made under the provisions of these Terms and Conditions. Save as otherwise stated in these Terms and Conditions, and unless a deviation from these Terms and Conditions is explicitly agreed between TIKI Safety and the Buyer in writing, any documents that either Party may use from time to time for their mutual convenience such as order documents, purchase notes or sales confirmation forms are for administrative convenience only. An agreed and written deviation of these Terms and Conditions shall apply only to the extent specified and shall not in addition thereto affect or influence the interpretation of the agreement between the Parties. Save as otherwise stated in these Terms and Conditions and in the absence of such written agreement for a deviation, these Terms and Conditions shall supersede any other documents exchanged between the Parties.
3.5. TIKI Safety may in its discretion perform minor changes and improvements to the Product with the intent of improving the functionality and appearance prior to delivery on orders, without consulting the Buyer, providing that such adjustments does not affect the purchase price.
4. PRICES AND PAYMENT
4.1. TIKI Safety publishes price lists for its Products and may also offer discounts and special prices. TIKI Safety reserves the right to change the prices for the Products at any time upon 30 days’ notice, by comunicating the new price list to the Buyer. Such changed price for the Products shall apply to all orders placed following the effective date of price change.
4.2. All payments to be made and credits to be given shall be in EUR unless otherwise agreed in writing. Prices are quoted exclusive of V.A.T. and any similar taxes, levies or duties. Unless otherwise agreed in writing between the Parties all taxes, levies and duties shall be paid by the Buyer.
4.3. The Buyer shall purchase from TIKI Safety for its own account.
4.4. Payments for Products shall be made by Buyer as follows: a) Buyer will place an order, b) once accepted by TIKI Safety, TIKI Safety will issue an invoice to Buyer for 50% of the cost of the order (the “First Invoice”), c) Buyer will pay the invoiced amount, d) TIKI Safety will notify Buyer when the delivery is ready and issue an invoice for the other 50% of the cost of the order (the “Final Invoice”), e) Buyer shall pay the Final Invoice and TIKI Safety will make the order promptly ready for delivery upon receipt of the final payment.
4.5. The price payable for Products ordered are stated in the order documents.
4.6. Time for payment by the Buyer is of the essence to TIKI Safety. Unless otherwise agreed by the Parties, all payments shall be made by the Buyer in full without any set-off, restriction or condition and without any deduction for, or on account of, any counterclaim whether arising from breach of agreement, breach of statutory duty or any other matter whatsoever in order to justify withholding payment of any such sum in whole or in part.
4.7. If the Buyer considers an invoice not to be correct, the Buyer shall notify TIKI Safety in writing within ten (10) calendar days of receipt of invoice and detail any errors that prevent the Buyer to process the invoice and make payment, or else TIKI Safety’s invoice is deemed correct and valid.
4.8. If the Buyer fails to make payment in full on the due date of an invoice, TIKI Safety is entitled to charge default interest with 30 days’ EURIBOR with an added fifteen (15) percent. Such default interest will accrue on a day-to-day basis and be compounded monthly for the period from the date the amount originally was due through the date the amount was received and recorded on TIKI Safety’s bank account. If the Buyer fails to make payment for any First Invoice despite two written reminders and the due date is exceeded by 60 calendar days TIKI Safety, in its sole discretion, is entitled to immediately cancel the order in full or withhold, reallocate or cancel individual deliveries on current or future orders until payment has been made in full.
4.9. If the Buyer fails by more than ten (10) calendar days to make payment in full on the due date of a Final Invoice, TIKI Safety is in its discretion entitled to decide whether to (i) dispose of Products comprised in the corresponding order and appropriated for delivery to the Buyer to any third Party and postpone delivery on said order to the Buyer pursuant to availability, or (ii) to store the Products, on its own or through a third party, at the expense of the Buyer and including administrative surcharges.
5. DISTRIBUTION AND SALES
5.1. On these Terms and Conditions, the Buyer is granted the right to sell and distribute the Products to any re-seller or end-user in the Territory, but not outside the Territory.
5.2. The Buyer undertakes to not market, sell or distribute Products without having the relevant permits authorizations, licenses or other documents for the Territory as may be required by government, authorities or other entities.
5.3. The Buyer is solely responsible for obtaining, at its own cost, such permits, authorizations, licences and other documents, as are required in relation to the Products by governments, authorities or other entities pursuant to the Territory, from time to time. Said permits, authorizations, licences and document shall be obtained on behalf of and in the name of TIKI Safety. The Buyer undertakes to make said permits, authorizations, licenses and documents available to TIKI Safety without undue delay.
5.4. Any advertising, promotional and sales materials prepared or used by the Buyer for the marketing of Products, shall comply with the Visual and Graphic Identity and Brand Guidelines of TIKI Safety Brand Guideline as well as any instructions provided by TIKI Safety. Said guidelines and instructions may be revised and amended by TIKI Safety from time to time and said revisions and amendments shall be binding upon reasonable notice to the Buyer.
5.5. TIKI Safety may supply the Buyer with materials for marketing and sales. TIKI Safety may charge the Buyer for such material on a cost basis, unless agreed otherwise. The Buyer shall upon request provide TIKI Safety with copies of all materials used for advertising, promotion and sales.
5.6. The Buyer shall market and sell the Products in the original packaging as provided by TIKI Safety. To the extent required by mandatory laws or regulation, the Buyer undertakes to repack, change and/or modify labelling or packaging following consultations with TIKI Safety.
6. WARRANTY AND LIABILITY
6.1. Product warranties granted by TIKI Safety shall for each Product item last for a maximum of twelve (12) months from the date of documented purchase by an end-user of said Product item. Warranties granted to the Buyer are subject to any and all limitations on liability as stated in these Terms and Conditions.
6.2. The Buyer undertakes to examine the Products immediately when made available EXW. Within ten (10) calendar days of delivery, the Buyer shall notify TIKI Safety in writing and provide detailed information about any damages or other defects. If TIKI Safety does not receive such notice, TIKI Safety shall be discharged from all liability for shortages and any defects or deficiencies of Products which could have been observed or found upon initial examination.
6.3. The Buyer shall make available to TIKI Safety any defective Products or deficient packaging for inspection immediately upon request. Upon TIKI Safety’s request, the Buyer shall return all such Products to TIKI Safety. TIKI Safety will bear the cost for returns for claims proven to be valid.
6.4. Any complaints must be made by the Buyer in writing to TIKI Safety within the warranty period applicable to each Product. TIKI Safety has the right to replace or repair, at its sole discretion, defective or non-conforming Products. Replacement or repair shall be the Buyer’s sole remedy in case of defective or non-conforming Products.
6.5. Without limitation TIKI Safety’s warranties, liabilities or other obligations shall not apply to any Product which: (i) has been improperly stored or improperly altered in any way whatsoever; (ii) has been subject to misuse, negligent or wrongful use; (iii) has been used in a way other than its intended purpose; (iv) has been handled or used contrary to, or else without proper regard to, user instructions, other instructions, applicable laws and regulations; (v) has been subject to unauthorized repair or neglected maintenance; or (vi) has been subject to ordinary wear and tear.
6.6. Notwithstanding anything else in these Terms and Conditions and to the extent permitted by law, in no event shall TIKI Safety be liable for any special, indirect, incidental or consequential damages (including, without limitation, personal injury, property damage, loss of profits or loss of anticipated business, cost of substitute goods, downtime costs, delays, or claims of customers of buyer or other third Parties for such other damages) whether based on warranty, contract, tort, negligence, strict liability or otherwise.
6.7. Unless explicitly stated otherwise TIKI Safety’s aggregated liability under these Terms and Conditions shall be limited to 50 % of payments on orders made by the Buyer for the 12 months preceding the first claim by the Buyer for compensation.
6.8. The Buyer will, to the extent permitted by law and except in case of wilful misconduct, indemnify, defend and hold harmless TIKI Safety from and against all claims, actions, costs, expenses (including attorney’s fees) and damages of any kind and nature that may be brought against TIKI Safety for personal injury or death of either the Buyer’s employees or third Parties, or damage to either the Buyer’s or third Party’s property, resulting from or in connection to these Terms and Conditions.
6.9. Neither Party shall be held liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms and Conditions, for failure or delay in fulfilling or performing any action or omission which is required under these Terms and Conditions, other than an obligation to make a payment, when such failure or delay is caused by or results from epidemics, strikes, lockouts or other industrial disturbances, fires, explosions, floods, or other natural catastrophes, civil disturbances, riots, or armed conflict, whether declared or undeclared, curtailment, shortage, rationing, or allocation, of normal sources of supply, labour, materials, transportation, energy, or utilities, accidents, sufferance of or voluntary compliance with acts of government, regulatory authorities or governmental regulation, (whether or not valid) embargoes, or any other cause which is beyond the reasonable control of the non-performing Party. In the event that deliveries were to be delayed more than three (3) months due to such circumstances, the Buyer shall be entitled to cancel the units of the relevant order being delayed and unexecuted without incurring any liabilities towards TIKI Safety.
6.10. Notwithstanding anything else in these Terms and Conditions or other written agreement between the Parties, TIKI Safety does not exclude its liability (if any) to the Buyer: (i) under local, relevant and mandatory product liability regulation; (ii) for any matter which it would be illegal for TIKI Safety to exclude (or to attempt to exclude) liability of; or (iii) for fraud.
6.11. The Buyer agrees to expeditiously, without request from TIKI Safety, report to TIKI Safety any discovered, identified or suspected safety defects or malfunctions of the Products, as well as any product liability claim against the Buyer. For the avoidance of doubt, the foregoing shall not cause or imply the assignment of any liability in relation to such safety defects, malfunctions or claims, other than as otherwise expressly set out in these Terms and Conditions.
7. CLAIMS AND INFRINGEMENTS
7.1. TIKI Safety represents and warrants that the Products to the best of its knowledge do not currently infringe any intellectual property rights in the Territory and that TIKI Safety to the best of its knowledge fully owns or controls all intellectual property rights necessary to grant the rights provided in these Terms and Conditions to use the Products, and to enter into these Terms and Conditions. If, nevertheless, an infringement of a third Party’s intellectual property right would be proven by a competent court to have occurred, and the Buyer thereby has been deemed by said court to have suffered damage, TIKI Safety shall pay compensation, pursuant to the limitations on liability of these Terms and Conditions.
7.2. If claims are made or legal measures are taken against the Buyer, claiming that a Product infringes any third Party’s rights, the Buyer shall immediately notify TIKI Safety in writing. Unless such right is waived in writing, TIKI Safety and its appointed legal counsel(s) will unilaterally manage all aspects of such claim and making all relevant decisions in which case: (i) the Buyer shall assist TIKI Safety in the management; (ii) the Buyer shall not make any admission in relation to or seek to settle or compromise such claim, without the prior written consent of TIKI Safety; and (iii) to the extent the Buyer suffers any relevant loss or damage arising out of a proven infringement of third Party rights by the Products, TIKI Safety shall compensate the Buyer pursuant to these Terms and Conditions.
8. ENTRY INTO FORCE AND CANCELLATION
8.1. These Terms and Conditions will become effective upon placement of an order by the Buyer and will apply to all orders and deliveries pertaining to Products and made by the Parties.
8.2. TIKI Safety may refuse further performance, upon written notice to the Buyer, in the event that (i) the Buyer has materially breached an agreement between the Parties, including these Terms and Conditions, and has failed to take reasonable steps to remedy the breach (if said breach may be remedied) to the reasonable satisfaction of TIKI Safety, within 30 days after being required in writing to do so; (ii) the Buyer is found to be, or appears likely to become, insolvent, bankrupt or the subject to any form of insolvency proceedings; or (iii) the Buyer has failed payment for more than 90 calendar days post the due date of an invoice.
9.1. Any notices required under these Terms and Conditions will be in and delivered to the Party in person or by registered mail or other method listed below to the address set out in the list of Parties. Such notice will be deemed to have been received by the other Party (a) if delivered in person, on the day of delivery; (b) if sent by an internationally recognized express courier service, on the second business day from its submission; or (c) if by e-mail, upon confirmation of receipt other than by an autogenerated message.
9.2. TIKI Safety may unilaterally TIKI Safety reserves the right to amend and revise these Terms and Conditions at any time upon 30 days’ notice, by publishing the amended and revised Terms and Conditions on its webpage. The amended and revised Terms and Conditions shall apply to all new orders placed following the effective date of the amended and revised Terms and Conditions.
9.3. In the event that any provision or part of these Terms and Conditions to any extent be or become invalid or unenforceable, or should terms lack to provide certain provisions, it will not affect the legality, validity or enforcement of the other provisions. The Terms and Conditions shall be adjusted pursuant to such lacking provision or invalid or unenforceable part in accordance with the interests and objectives of the Terms and Conditions as these were identified at the time of its execution
10. GOVERNING LAW AND DISPUTES
10.1. These Terms and Conditions are construed in accordance with and governed by the substantive laws of Sweden, disregarding its choice of laws provisions.
10.2. All disputes, controversies or claims arising out of or in connection with the purchase of Products by the Buyer, shall be finally settled by arbitration by the Arbitration Institute of the Stockholm Chamber of Commerce. Unless the Parties agree otherwise, the place of the arbitration proceedings will be Stockholm, Sweden, and the language to be used will be English.