2. Purchase Orders
All Purchase Orders for Products shall be made in writing. No Purchase Order shall be binding upon Hammerglass unless the Purchase Order gets accepted by Hammerglass through an Order Confirmation. The automatic Order Acknowledgement sent out from the webshop after a placed order is not a binding document. The Order Acknowledgement will be followed by an Order Confirmation.
If any unforeseen changes of costs for raw materials, alloys, energy, exchange rates, duties, taxes or governmental charges occur before delivery and such change affects Hammerglass’ costs for supplying Products, Hammerglass shall be entitled to adjust the price accordingly.
Purchaser may not offset any claim against debts to Hammerglass unless such claim is uncontested or its validity has been established as legally effective. All prices shown are exclusive of any applicable tax. Any tax that Hammerglass is required to collect pursuant to the sale of Products hereunder shall be in addition to the price and shall be borne entirely by the Purchaser.
4. Terms of Payment
Unless otherwise stated in the Order Confirmation or invoice, payment is due 30 days from the date of invoice. In the event of any delay in payment, Hammerglass is entitled to interest on the amount overdue from the due date at an annual interest rate corresponding to the official repo rate applied by Sweden’s Central Bank (Sw: “Riksbanken”) from time to time plus 8%.
Title to the Products shall remain vested in Hammerglass and shall not pass to the Purchaser until fulfilment of all of Purchaser’s liabilities under the business relation with Hammerglass (including payment of agreed price, related costs and charges). If the relevant domestic property laws do not recognize a retention of title or provide for additional requirements such as but not limited to registration requirements etc., the Purchaser undertakes to support Hammerglass at Hammerglass’ request in order to either fulfil any of these requirements or to establish a comparable security interest for Hammerglass in relation to the Products sold to the Purchaser.
Hammerglass’ acceptance of payment shall not waive or limit any right or remedy of Hammerglass.
Delivery of Products shall be made in accordance with the Specifications (incl. information regarding packaging) or such other specification agreed in the Order Confirmation. The quantity of the Products specified in the Order Confirmation forms the basis for invoicing. All deliveries shall be made in accordance with the Incoterm agreed between the Parties in the Purchase Order and confirmed in the Order Confirmation (as defined by Incoterms 2010). Orders placed through the webshop will be confirmed by an Order Confirmation stating even the freight cost and Incoterms.
All specified delivery dates refer to the completion of manufacture and availability for shipment of the Products and are Hammerglass’ best estimates. Hammerglass reserves the right to modify the delivery dates with notice to Purchaser. Hammerglass shall notify Purchaser in case there is reason to believe that delivery of Products may be delayed. Except in cases set forth in Section 10 below, Purchaser shall, in case the delay exceeds thirty (30) calendar days, be entitled to cancel the delivery in question provided that the delay causes Purchaser considerable inconvenience and provided the Products are not customized or customer specific Products. Purchaser shall not be entitled to make any other claims for damages or otherwise in case of delayed delivery.
In case Hammerglass becomes aware of the likely occurrence of Purchaser’s insolvency or inability to pay for delivered Products, Hammerglass shall have no obligation to make delivery, and shall be entitled to stop Products under carriage, unless Purchaser makes advance payment for the delivery and other claims arising from the business relation (including but not limited to paying any outstanding debt) or grants security which can reasonably be accepted by Hammerglass.
In the event Purchaser is unable to take delivery of any shipment or refuses delivery of a scheduled shipment, Hammerglass will store the shipment at Purchaser’s sole risk and expense and payment for such delayed shipment shall immediately become due.
Return of Products for any reason whatsoever shall require prior written approval of Hammerglass.
Hammerglass warrants the Products will conform to the Specifications, unless otherwise agreed to in writing by Hammerglass in the Order Confirmation. Should Products, as delivered, be shown not to conform with the Specifications or the specification otherwise agreed in writing, as the case may be, or the quantity of delivered Products be shown to deviate from the agreed quantity, Hammerglass shall, at its own discretion and at its own costs, as the sole remedy of Purchaser, either (i) deliver new Products; (ii) repair the non-conforming Products; or (iii) refund such proportion of the purchase price received which correspond to the non-conformity or the shortage. Purchaser is, however, solely liable for the suitability of Products and their compliance with laws, regulations and applicable standards, for the intended use.
If Hammerglass decide to repair the non-conforming Products, Hammerglass shall be free to perform the repair by themselves or to appoint a third party to perform the repair.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, COVENANTS OR REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR IN WRITING, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE EXPRESSLY DISCLAIMED.
7. Non-conforming Products
Purchaser shall examine the Products upon delivery and report to Hammerglass without undue delay any damage, non-conformity or deviation in quantity. Any claim from Purchaser on account of such examination must be made to Hammerglass prior to the Product being used or put into production. Any claim on account of such defects, damages, non-conformities or deviation shall in any event be deemed waived by Purchaser, unless submitted to Hammerglass in writing not later than thirty (30) days from the delivery date.
If the Purchaser have a claim towards Hammerglass, the Purchaser shall fill out the form named “Notice of Claim” that, from time to time, can be found on Hammerglass homepage, www.hammerglass.com, and send the filled-out form to the address further specified in the form.
Hammerglass shall be entitled to examine the allegedly non-conforming Products at the Purchaser’s premises and if Hammerglass decides to deliver new Products Hammerglass shall have the right to collect the non-conforming Products.
If Hammerglass does an examination of the Products at the Purchaser’s premises and it is during or after this examination determined that the allegedly non-conforming Products are in fact conforming with the Specifications or it is determined that the non-conformity is not due to any fault by Hammerglass, Hammerglass may debit Purchaser for any costs related to the examination.
8. Limitation in liability
The total liability of a Party on any claim whether in contract, tort (including negligence) or otherwise arising out of, connected with or resulting from the manufacture, sale, delivery, resale, replacement or use of any Product shall in no event exceed the price allocable to the Products or part thereof which give rise to the claim. No action may be brought by a Party more than six (6) months from the delivery date and regardless of whether the cause for the action has been known to the Party by that time.
In no event shall a Party be liable to the other Party for any punitive, special, incidental, indirect or consequential loss or damage of any kind or nature, arising at any time, from any cause whatsoever, including loss of revenue or profit. The limitation of liability shall not apply (i) in case of gross negligence or wilful misconduct; (ii) in case of bodily injury; or (iii) in so far as mandatory laws provide otherwise.
Hammerglass shall have no liability in respect of damage, non-conformity or deviation in quantity or quality if such damage, non-conformity or deviation is resulting from or relating to the failure by the Purchaser (or its employees or customers) to comply with laws, regulations, applicable standards or instructions of Hammerglass as given from time to time regarding the use, handling, installation, transportation or storing of the Products.
9. Export control and sanctions
Hammerglass’ obligations under the Agreement are subject to the condition that Hammerglass obtains any export authorizations needed from relevant authorities, including authorizations in relation to dual-use items and transactions with or related to any sanctioned persons, entities, sectors, products or countries.
Any delivery under the Agreement is subject to the provision that performance does not conflict with any national or international export control regulations, for example embargoes or other sanctions. The Purchaser undertakes to provide all information and documents required for the export or transfer of the Products such as information on end user, final destination (country) of Products sold by Hammerglass and/or description of end use. Delays due to export examinations or permission procedures shall set aside any time limits and delivery periods. If the necessary permissions are not granted, or if the delivery is not capable of being permitted, the Agreement between the Parties shall be deemed as not concluded with regard to the parts of it that are concerned.
Hammerglass is entitled to suspend performance and/or terminate the Agreement without notice if, based on Hammerglass’ understanding, such action on the part of Hammerglass is warranted in order for Hammerglass to comply with national or international legal export control and sanctions regulations. In the event of such suspension or termination, the assertion of any claim for damages or the assertion of other rights by the Purchaser based on the suspension or termination shall be excluded.
The Purchaser must upon passing on any Products delivered by Hammerglass to third parties at home and abroad comply with all national, regional and international export control and sanctions laws and regulations, as applicable to the Purchaser and/or Hammerglass, including at all times the EU regulation on dual-use items and any EU Council sanctions regulations in force.
10. Cases of Relief (Force Majeure)
All cases of force majeure, being any circumstance or set of circumstances outside the reasonable control of a Party and which materially impede a Party from performing its obligations hereunder (“Force Majeure”) and which shall include, but not be restricted to, fire, pandemics, flood, earthquake, explosion, riot, strike, lockout, terror, war and regulations of any governmental or local authority shall, for the duration of and to the extent of the effects caused by such disturbances, release the Parties from the performance of their contractual obligations hereunder for the duration of such Force Majeure.
The Purchaser undertakes, without limitation in time, not to disclose any Confidential Information received from Hammerglass to any third party and to only use such Confidential Information for the sole purpose of the fulfillment of the Agreement.
“Confidential Information” means any and all information disclosed by Hammerglass or that relates to the Agreement or its contents, regardless of whether the information has been documented or not, with the exception for (i) information which at the time of disclosure is in the public domain or which is published after disclosure or otherwise becomes part of the public domain through no fault of the Purchaser; (ii) information which was known by the Purchaser at the time of disclosure as shown by written record to this effect; and (iii) information which the Purchaser has received from a third party who did not acquire the information from Hammerglass under an obligation of confidence.
The Purchaser shall procure that its employees, consultants and board members adhere to the confidentiality provisions in this Section.
For the avoidance of doubt Hammerglass shall be the sole owner of any Confidential Information that Hammerglass discloses to the Purchaser, this includes Confidential Information provided in any Specifications.
12. Governing law and disputes
This Agreement shall be governed by Swedish law, without regard to its principles of conflict of laws, except that the Swedish law (1987:822) on International Sale of Goods shall not apply. Neither shall the United Nations Convention for the International Sale of Goods apply to this Agreement.
Any dispute, controversy or claim arising out of or in connection with the delivery of Products shall be finally settled by the courts of Sweden. The district court (Sw. Tingsrätten) of Helsingborg, Sweden shall be the exclusive court of first instance.