General Terms and Conditions of Sales of NAVITEC SYSTEMS Oy
1. General provisions, scope of application
a. All sales shall be governed exclusively by these Terms and Conditions of Sale of NAVITEC SYSTEMS. NAVITEC SYSTEMS shall not recognize any conflicting conditions of the purchaser or conditions that differ from NAVITEC SYSTEMS’s Sales Terms and Conditions unless NAVITEC SYSTEMS has explicitly consented in writing to their applicability. Any conflicting conditions of the purchaser or conditions that differ from these General Sales Terms and Conditions are herewith contradicted. NAVITEC SYSTEMS’s Sales Terms and Conditions shall apply even if NAVITEC SYSTEMS, with knowledge of conflicting conditions of the purchaser or conditions that differ from its terms, executes delivery to the purchaser without reservation.
b. A conclusion of a contract shall not fail due to general terms and conditions that contradict each other. In so far as conflicting general terms and conditions correspond to each other, the conforming provisions shall apply. Moreover, those terms of NAVITEC SYSTEMS shall be deemed to have been agreed which correspond to noncontradicting terms of the purchaser’s general terms and conditions. However, those provisions of the purchaser’s general terms and conditions which do not correspond to the content of NAVITEC SYSTEMS’s General Terms and Conditions shall not form part of the contract. In all other cases, the provisions of the European Union law shall apply.
c. All agreements made between NAVITEC SYSTEMS and the purchaser must be recorded in writing. This also applies to a revocation of the requirement that such agreement be in writing.
d. NAVITEC SYSTEMS’s Sales Terms and Conditions only apply to companies, legal persons under public law and special public funds under public law.
2. Acceptance of orders
• All orders must be accepted in writing by a duly authorized representative of NAVITEC SYSTEMS. A fictitious acceptance by which non-contradicted orders are to be deemed to have been accepted does not exist. Changes made to the order after its acceptance shall only become effective if they are confirmed in writing by a duly authorized representative of NAVITEC SYSTEMS. Unilateral changes to the order by the purchaser are ineffective.
3. Contract rescission / order cancellation
• Orders accepted by NAVITEC SYSTEMS may not be cancelled unilaterally by the purchaser, but only with the written approval / consent of NAVITEC SYSTEMS, regardless of the reason for cancellation or rescission and without limitation of the rights and / or damage compensation claims to which NAVITEC SYSTEMS is thus entitled, unless the contracting party is entitled to a legal right of rescission. Orders for custom hardware or custom software cannot be cancelled or rescinded.
4. Prices and terms of payment
a. Unless otherwise indicated in the order confirmation, NAVITEC SYSTEMS’s prices shall be ex works NAVITEC SYSTEMS’s registered office in Espoo, Finland, exclusive of packing and shipping, which shall be billed separately.
b. Value-added tax as required by law is not included in the prices. It is indicated separately on the invoice in the amount required by law on the date of delivery or performance.
c. The deduction of cash discounts shall require special written arrangements. A unilateral cash discount deduction by the purchaser shall not be recognized by NAVITEC SYSTEMS.
d. The total gross invoice amount shall be due and payable within 30 days immediately upon receipt of the invoice without any possibility of deduction. Special rules apply for custom engineering hardware / software, where 50% of the payments are due immediately with order placement and the remaining 50% due upon shipment 30 days net (orders will not be started to work on without down-payment received). Default of payment shall commence 30 days upon receipt of invoice unless otherwise agreed by an individual contract. The authoritative date of payment shall be the date of receipt by NAVITEC SYSTEMS. If the purchaser is in payment arrears, NAVITEC SYSTEMS shall be entitled to claim default interest at the respective applicable statutory default interest rate in the amount of 8% p.a. above the respective base interest rate of the European Central Bank. Additionally, NAVITEC SYSTEMS shall be entitled to add all processing costs as well as all relevant legal and collection costs to the amount collected from the purchaser.
e. All payment have to be made by electronic bank transfer. Checks are not an accepted form of payment.
f. NAVITEC SYSTEMS may offset any payments received from the purchaser against the purchaser’s obligation towards NAVITEC SYSTEMS arising from this or any other transaction, regardless of any statement made with the payment or in relation thereto. Acceptance of a partial payment does not signify waiver by NAVITEC SYSTEMS of total payment of all outstanding amounts owed by the purchaser to the seller.
g. NAVITEC SYSTEMS may refuse to supply hardware or software on credit at any time. Such items supplied to the purchaser for payment upon delivery or similar methods are subject to these Sales Terms and Conditions.
h. The purchaser may declare a set-off to NAVITEC SYSTEMS only if his or her counterclaims have been decided finally and absolutely, are uncontested, or are recognized and acknowledged by NAVITEC SYSTEMS.
i. Unless anything else to the contrary has been agreed, NAVITEC SYSTEMS reserves the right to raise the selling price unilaterally if NAVITEC SYSTEMS’s costs rise due to currency fluctuations, and if the hardware / software has not yet been shipped from NAVITEC SYSTEMS’s office in Finland yet (registered office). In the event of a price increase due to currency fluctuations, the selling price stated to the purchaser will be raised by the same percentage as NAVITEC SYSTEMS’s cost has risen due to currency fluctuations (this paragraph applies to pricing other than Euro pricing only).
5. Delivery period and delivery
a. NAVITEC SYSTEMS is obligated solely to provide hardware, software and engineering support only after clarification of all technical matters. This does not apply to standard software and hardware according to the manufacturer’s specification. NAVITEC SYSTEMS shall not be obliged to engineer and deliver custom hardware or software until the purchaser has definitely given the go-ahead for development / engineering. This implies and requires that the purchaser duly fulfills all agreed and other obligations properly in good time.
b. The indication of delivery times by NAVITEC SYSTEMS shall be nonbinding unless it has been marked as binding expressly and in writing.
c. If the purchaser defaults in accepting delivery of hardware or software or violates other participation obligations, NAVITEC SYSTEMS shall be entitled to require compensation for damages thus incurred by NAVITEC SYSTEMS, including any added expenses.
d. NAVITEC SYSTEMS shall not be responsible for defaults in delivery or performance due to reasons beyond its control. Such reasons include – without restriction or limitation – acts of God, actions taken or refrained from by the purchaser or by civil or military authorities, fire, strike, epidemics, quarantine regulations, natural disasters such as floods, earthquakes, unrest, war, shipping delays etc., insufficient selfdelivery of NAVITEC SYSTEMS due to bottlenecks in the manufacturing or delivery chains. In case of delay, any contractually agreed delivery deadline will be extended by a period corresponding to the time lost due to such delay, without NAVITEC SYSTEMS incurring obligations to pay compensation or contractual penalties by this. This exclusion of liability shall not apply in the event of impairment to body, life and/or health.
e. NAVITEC SYSTEMS is entitled to refuse or delay the delivery of hardware or software or engineering support if the purchaser fails to make immediate payment of amounts due and payable, regardless of whether such amounts are the result of the same or another contractual relationship with NAVITEC SYSTEMS.
f. NAVITEC SYSTEMS may provide hardware and software falling under the present provisions at any time or in several partial shipments within the period set in the respective order.
g. All stated prices and shipped merchandise is ex works NAVITEC SYSTEMS, Espoo, Finland. In particular, this means that the purchaser has to bear all expenses and risk of loss or damage from the time at which the hardware / software leaves the place of manufacture or storage. Rights to the merchandise and the risk of loss, damage, or accidental destruction devolve upon the purchaser when NAVITEC SYSTEMS gives the merchandise to the carrier for shipment. The purchaser pays all freight and shipping costs, as well as any applicable insurance premiums for shipment of the merchandise, subject to written approval of contrary arrangements by NAVITEC SYSTEMS. Unless the purchaser instructs otherwise, NAVITEC SYSTEMS may itself determine the carrier, shipping method and transport route.
6. Transport insurance
• If expressly so desired by the purchaser when he places his order, NAVITEC SYSTEMS will provide transport insurance coverage for the merchandise shipment. Costs so incurred are paid by the purchaser.
7. Warranty for defects in hardware / software
a. The purchaser’s rights under the warranty require that the purchaser has properly fulfilled its inspection and notification obligation. The purchaser has to inspect the hardware /software entirely, irrespective of whether the delivery only constitutes a transit business for the purchaser. It is assumed that the purchaser has accepted the hardware if he or she has not refused acceptance within a reasonable period. Such period shall be 10 days from receipt of the hardware / software. NAVITEC SYSTEMS does not waive its right of objection on the grounds of lateness. Claims due to delay in delivery are ruled out unless made prior to receipt of the hardware / software. Hardware / software acceptance represents a waiver of any and all claims due to delay in delivery.
b. Return shipments will be accepted only if a “Return Material Authorization” is first obtained from NAVITEC SYSTEMS. Hardware must be returned in the original packaging and must conform to the instructions of the office that issued the aforementioned “RMA”. Returned hardware in electrostatic packaging will be accepted only if such packaging has not been opened.
c. The default warranty period for deliveries to any country is one year. Any suspension or restart of the limitation periods is excluded.
d. NAVITEC SYSTEMS shall not be obliged to provide or procure hardware beyond the scope of warranty. In particular, NAVITEC SYSTEMS shall not be obligated to provide any spare parts.
e. To the extent the hardware / software has a defect for which NAVITEC SYSTEMS is responsible, NAVITEC SYSTEMS shall be entitled to correct the defect, provide a replacement, or refund the purchaser, at NAVITEC SYSTEMS’ choice. For defect correction of the product, NAVITEC SYSTEMS is obligated to pay all its expenses necessary for the purpose of correcting the defect of the delivered product, in particular cost of transport, travel, labor and materials, insofar as such cost are not increased due to the merchandise having been moved to a location other than the place of performance. NAVITEC SYSTEMS does not waive the right to be given the opportunity to remedy a fault, even if the transaction is an urgent one for the purchaser. The remediation of a defect and/or the warranty for defects neither include(s) the expenses for the dismounting of the defect item, nor the expenses for its reinstallation. NAVITEC SYSTEMS shall not assume these costs.
f. Additional claims of the purchaser are ruled out, regardless of their cause in law, insofar as no other provisions are set forth hereinafter, including Clause 8, Aggregate liability, below. Therefore, NAVITEC SYSTEMS assumes no liability for any damage caused to the deliverable or by the deliverable to other property of the purchaser.
g. Maximum compensation of the purchaser based on a payment claim by the purchaser is limited in accordance with Clause 8 below regardless of the type of the payment claim, arising either from warranty or from the contract.
h. Claims for damages – for whatever reason or legal ground – shall be made within one (1) year from the date of delivery or in case of service, from the date of the damage occurring event or completion of the service, whichever is earlier.
8. Aggregate liability
a. NAVITEC SYSTEMS shall not, under any circumstance or theory of law be liable for indirect, incidental, special, exemplary, or consequential damages (including, but not limited to; loss of use, data, or profits; or business interruption). The liability of NAVITEC SYSTEMS under this Agreement shall in all cases be limited to an aggregate yearly amount corresponding to 20% of the yearly contract purchase price.
b. The limitations of liability stated above, shall not apply in case damages are caused by gross negligence or willful misconduct.
c. The purchaser hereby agrees to indemnify and hold NAVITEC SYSTEMS harmless from and against any claims made by employees of the purchaser or by third parties based on product liability regarding the hardware and/or software delivered to the purchaser by NAVITEC SYSTEMS.
9. Retention of ownership
a. NAVITEC SYSTEMS shall retain ownership of hardware / software pending receipt of all payments resulting from the supply contract; the purchaser recognizes the simple and prolonged retention of ownership by NAVITEC SYSTEMS.
b. In the event of seizures or other interventions by third parties, the purchaser must notify NAVITEC SYSTEMS thereof in writing without delay to enable NAVITEC SYSTEMS to file an action. In particular, the purchaser shall be obligated to point out the ownership status of the items to the enforcement body. To the extent that the third party is not able to reimburse NAVITEC SYSTEMS for court and other expenses associated with an action, the purchaser shall be liable for the financial loss suffered by NAVITEC SYSTEMS.
10. Patents, violations
• NAVITEC SYSTEMS shall provide no assurances whatsoever that hardware / software sold to the purchaser is free of third-party legal claims based on a violation or infringement of a patent, trademark or the like, and shall provide no warranty and assume no liability whatsoever in the event of a violation in connection with the hardware / software regarding said situations. The purchaser recognizes this non-warranty. The purchaser rather has to ensure by himself that the products sold by him in the respective countries do not violate any third-party rights.
11. Assembly and installation
• The purchaser shall be solely responsible for installing and operating the hardware / software sold hereby, including – without limitation for obtaining all approvals, licenses, and certificates required for installing, operating and selling these hardware / software.
12. Technical consultation and data
• Any technical consultation or advice offered or given in connection with the use of the hardware / software shall be a gratuitous favor for the purchaser; NAVITEC SYSTEMS shall bear no responsibility and assume no liability whatsoever for the content, application or consequences of any such consultation or advice.
13. Rights of seller
a. In the event that the purchaser falls into arrears with his or her payments, the purchaser shall pay all costs incurred by NAVITEC SYSTEMS in collecting amounts owed by the purchaser, including reasonable legal fees and collection feeds. This includes a reasonable lawyers’ fee and collection charges. NAVITEC SYSTEMS is entitled to assign its claims against the purchaser to third parties or / and to have them collected by third parties.
b. If NAVITEC SYSTEMS waives its rights in the event of violation of these provisions and conditions or in case of payment arrears, this shall not constitute a waiver of such rights in case of subsequent violations or omissions.
14. Agreement, amendments/supplements to agreement
• The present agreement shall represent the sole and total agreement between the parties with regard to the subject matter of the contract, replacing all earlier or contemporaneous agreements between them, whether written or oral, regarding that subject matter. Previous transactions between the parties and procedures customary in the industry shall not be authoritative as an interpretation or amendment of a provision hereof. Acceptance or tolerance in case of a performance rendered in the context hereof shall not be authoritative for determining the meaning of the present agreement, even if the accepting or tolerating party had knowledge of the type of performance and had the opportunity to object. Any later changes to this agreement shall be binding upon NAVITEC SYSTEMS only if made in writing and signed by both the purchaser and NAVITEC SYSTEMS. An assignment by the purchaser of this agreement or the rights arising therefrom shall be valid only with the written consent of NAVITEC SYSTEMS.
15. Purchaser’s provisions and conditions
a. NAVITEC SYSTEMS shall strive to serve its customers promptly and efficiently. Accordingly, NAVITEC SYSTEMS shall provide its hardware / software and shall render its services exclusively in accordance with the provisions and conditions set forth herein.
b. Contract fulfillment by NAVITEC SYSTEMS shall depend exclusively on the consent of the customer on NAVITEC SYSTEMS’s terms of sale, unless NAVITEC SYSTEMS expressly consents beforehand in writing to different arrangements. In the absence of such agreement, the service and/or delivery shall begin only by way of accommodating the purchaser; this shall not establish an act of acceptance of any or all of the purchaser’s provisions and conditions and cannot be interpreted as such.
c. If no contract is concluded in writing beforehand by mutual consent, then acceptance of the hardware / software or services shall be considered acceptance of the provisions and conditions named herein.
16. Export control
a. NAVITEC SYSTEMS points out that the delivery of goods (hardware, software, technology) may be subject to restrictions and prohibitions under the export control law. In particular, these are European requirements of the foreign trade legislation. Furthermore, there are European and national embargo regulations against certain countries and persons. These embargo regulations may prohibit deliveries or make them subject to approval.
b. The purchaser undertakes to recognize and comply with all applicable export control regulations.
c. In particular, the purchaser undertakes to ensure that the use to which the goods are put either directly or indirectly is not connected in any way to the development, manufacture, handling, operation, maintenance, storage, positioning, identification or the proliferation of chemical, biological or nuclear weapons and their carrying systems. Furthermore, the purchaser undertakes to ensure that the end-use to which the goods are put either directly or indirectly is not of a military nature in a country subject to a weapons embargo.
d. Upon NAVITEC SYSTEMS’s request, the purchaser shall be obligated to issue documents indicating the final destination of the goods and to send the original documents to NAVITEC SYSTEMS in order to be able prove the goods’ final destination and end-use.
e. This offer (contract, order confirmation) and the execution of the contract are subject to the proviso that the required export or transport licenses or other licenses or approvals under foreign trade law, if applicable, are granted by the authorities in charge and that there are no other conflicting legal impediments arising from regulations under export control law which are to be complied with by NAVITEC SYSTEMS as exporter or transferor or by one of NAVITEC SYSTEMS’s suppliers.
17. General provisions
a. The present agreement and the performances to be rendered by the parties shall be governed by and construed in accordance with the laws of Finland. The parties hereby explicitly rule out the applicability of the United Nations’ law on the international sale of goods and The Hague Convention on the law governing international sales agreements for movable property/Uniform Law on the Sale of Goods. All provisions, conditions, and agreements contained herein shall apply for all legal successors of the purchaser and shall be binding upon them.
b. If a provision or part of the present agreement is or becomes invalid, illegal, contrary to law or to public policy, or unenforceable, the remaining provisions or portions thereof shall remain unaffected thereby.
c. The individual Section headings employed herein serve only to help the parties to categorize performances hereunder. The interpretation of the provision is not affected by this.
18. Legal venue / place of performance
a. Provided that the purchaser is a company, a legal person under public law or a special asset under public law, the courts at the location or the registered office of NAVITEC SYSTEMS shall have exclusive – and even international – jurisdiction for all disputes arising directly or indirectly from the contractual relationship; the same applies if the purchaser is an entrepreneur. However, NAVITEC SYSTEMS shall also be entitled to bring action against the purchaser at the place of performance or at the purchaser’s place of general jurisdiction. Overriding statutory provisions, particularly with respect to exclusive competencies, remain unaffected.
b. Unless otherwise indicated in the order confirmation, the place of performance shall be the location of NAVITEC SYSTEMS’s registered office.