In these Conditions, “Seller” means BEYOND MOTORS d.o.o.; “Buyer” means a customer that places an order on Seller which is accepted by Seller; “Goods” means all items referenced on Seller’s order acknowledgement excluding Services; “Services” means any installation, commissioning, calibration, part programming, training, maintenance or other such services provided by Seller, as are referenced on Seller’s order acknowledgement and any written description or specification which has been provided to Buyer (“Services Specification”); “Deliverables” means the deliverables from any Services, as are referenced on Seller’s order acknowledgement or Services Specification; “Intellectual Property Rights” means any patents, trademarks, registered designs and all applications for registration of them, copyrights or design rights or any right which is similar or analogous to any of these anywhere in the world; “Incoterm” means one of the sets of terms defined by Incoterms 2010.
A. Seller’s quotations are submitted on these Conditions and are not offers capable of acceptance. Buyer’s orders are not binding on Seller. A contract shall only come into existence on the date Seller issues a written order acknowledgement on these Conditions and the “Contract” means the written order acknowledgement, Seller’s datasheet, if any, any other terms or documents referenced on the order acknowledgement and other terms incorporated by these Conditions. These Conditions supersede any conditions in Buyer’s order.
B. No other terms, conditions or representations about the Goods or Services shall apply unless specifically agreed by Seller in writing. No variation or waiver of these Conditions shall be effective unless made in writing signed by an authorised representative of each party.
C. The Goods or any part of them are sold subject either to: (i) the “ex works” Incoterm; or (ii) another Incoterm referenced on Seller’s order acknowledgement; and the relevant Incoterm shall be incorporated into the Contract. If there is any inconsistency, the order of precedence shall be (i) any other terms or documents referenced on the order acknowledgement, (ii) these Conditions, and (iii) the Incoterm.
A. Unless otherwise agreed in writing, or provided for in the relevant Incoterm, all prices quoted are: (i) ex works Seller’s premises, (ii) exclusive of any applicable value added tax, which shall be payable in addition; and (iii) subject to variation and may be replaced with those prevailing at the date of delivery.
B. The price for the delivery of the Goods is charged separately from the price for the Goods and includes all matters for which Seller is liable under the relevant Incoterm.
C. Unless otherwise agreed in writing, Buyer shall pay all Seller’s invoices in full (in cleared funds) not later than 5 business days from the date of the pro-forma invoice.
D. Seller may charge interest on overdue sums at the highest rate permissible under applicable law, accruing on a daily basis until payment is received, after as well as before any judgment for such sums. For avoidance of doubt, the Seller will charge 10% on amounts not paid (“base rate”), unless otherwise communicated in writing to the buyer.
E. All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding.
A. All delivery dates are estimates only and the time of delivery is not of the essence of the Contract. The Seller is not liable to compensate Buyer in damages or otherwise for non-delivery or late delivery of the Goods, Services, or any part of them, for whatever reason or for any direct or indirect loss arising.
B. If Seller cannot deliver the whole or part of any Goods or Services because of any cause which is not reasonably within Seller’s control, the time of delivery shall be extended by a period equal to that during which the cause delaying delivery exists. If this Condition applies, Seller shall deliver and Buyer shall take and pay for such part of the Goods and Services as Seller shall be able to deliver in accordance with the Contract.
C. Seller shall be entitled to deliver the Goods in one or more consignments or instalments unless otherwise expressly agreed. In all cases where delivery is made in one or more consignments or instalments, each consignment or instalment shall be deemed to be made under a separate contract and may be invoiced separately, and cancellation of any consignment or instalment shall not void or affect contracts as to other consignments or instalments.
D. Delivery shall be in accordance with the relevant Incoterm as communicated in these Terms and Conditions.
E. Where the Buyer is to collect the Goods from Seller’s premises, it shall do so within 10 business days of receipt of Seller’s notice that the Goods are ready for collection, otherwise, Seller may charge Buyer for its costs associated with Buyer’s failure to collect within this time, including relevant holding and administrative costs. Where the Seller has arranged for carriage of the Goods, Buyer shall be deemed to have received such Goods unless it notifies Seller in writing of non-delivery by the due date for payment of the relevant invoice.
F. If it has been agreed in writing that the Goods are sold subject to prior inspection by Buyer, such inspection shall take place at the Seller’s premises and once the Buyer or its approved representative has inspected and approved the Goods, the Goods shall be conclusively presumed to be in accordance with the Contract and accepted, and Condition xx below shall not apply in respect of those Goods.
G. If, before acceptance, Buyer establishes - to Seller’s reasonable satisfaction - that the Goods are not in accordance with the Contract, Buyer’s sole remedy shall be limited, at Seller’s option, to the replacement of the Goods or refund of the purchase price against return of the Goods.
H. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the products. Unless Buyer provides Seller with written notice of any claim for shortage, defect or nonconformity in the products within ten (10) business days after receipt of shipment, such products shall be deemed finally inspected, checked and accepted by Buyer.
I. The Seller produces products that are customized for each customer. That means that the Seller cannot accept returns except for defects in materials and workmanship. In addition to Buyer’s right to cancel, Buyer can return only standard parts that can be manually removed and exchanged without using special tools/machines (e.g. resolver/encoder, water cooling pipes).
A. The Seller may, at its option, cancel or withhold all further deliveries under the Contract if Buyer:
B. Buyer shall immediately give notification to Seller if any of the events in (ii)-(v) above apply, and in the case of death, Buyer’s representatives shall give such notification.
C. No order submitted to Seller may be cancelled by Buyer without the prior written consent of Seller, which consent will at all times be conditioned on Buyer’s agreement to pay Seller the cancellation charge. Cancellation charge shall amount to all costs and expenses incurred by Seller and arising out of or in connection with Buyer’s order, net of recoverability, but in no event less than 25% of the invoice price of the Goods or more than the invoice price. In case the goods are already produced, the cancellation charge is not less than 50% of the invoice price of the Goods or more than the invoice price.
D. Where it is a condition of the Contract that Buyer will open a letter of credit or pay the whole or part of the price for the Goods or Services before the due delivery date, any failure to comply will entitle Seller to treat the Contract as cancelled by Buyer, and Seller may invoice for the amounts in 2B above.
Risk of loss of or damage to the Goods shall pass to Buyer at the time specified by the relevant Incoterm.
Property in the Goods or in tangible Deliverables shall not pass to Buyer until Seller receives full payment (in cleared funds) for the Goods and Services. If Buyer does not pay for the Goods and Services on time then Seller shall be entitled to the immediate return of the Goods and Deliverables (or the documents of title to them) and Buyer hereby irrevocably authorises Seller to recover the Goods, Deliverables or documents and to enter any premises of Buyer for that purpose. Demand for or recovery of the Goods, Deliverables or documents by Seller does not affect Seller’s other legal rights.
A. The Seller warrants that the Goods shall be free from defects in material and workmanship for a period of:
B. Seller is not liable for the quality, performance or fitness for purpose of any hardware manufactured by a third party that are stand-alone items or otherwise external or supplied as an option to the Goods. However, Seller will endeavour to pass on to Buyer the benefit of any warranty received by Seller from its supplier.
C. If Buyer notifies Seller that any of the Services or Deliverables have not been provided using reasonable care and skill or do not materially meet any Services Specification in 30 business days (or such other period stated in Seller’s order acknowledgement or tender offer) after delivery, Seller shall re-perform the relevant Services within a reasonable time of notification.
D. The warranty in this Condition excludes any consumable items.
E. The Seller is not liable to Buyer for any such defect unless Buyer immediately gives Seller written notice of the alleged defect with full particulars of the operating conditions under which it became apparent and returns the Goods or relevant part or Deliverable carriage paid to Seller’s works.
F. Any items returned to Seller are at Buyer’s risk. Repaired or replacement items will be despatched carriage paid by Seller to the address requested by Buyer.
G. If the Seller does not identify a defect in the Goods or Deliverables, Seller may charge Buyer at its then-current chargeable rates, and for any costs and expenses reasonably incurred.
H. Seller is not liable, whether in contract, tort or otherwise, for any defect, damage to or reduced performance of:
I. The decision of Seller on all matters governed by this Condition 6 and in particular (but without limiting the foregoing) as to the nature and cause of any defect or malfunction, shall be conclusive, and binding on Buyer.
A. Where the Goods have been produced or adapted according to designs or configurations specified or supplied by Buyer, Buyer represents and warrants to Seller that:
Buyer shall indemnify Seller against all actions, suits, claims, demands, charges, interest, costs and expenses which Seller may suffer or incur in connection with any claim by any third party alleging facts which, if established, would indicate a breach of Buyer’s representations and warranties in this Condition.
A. Buyer shall bring to the attention of all persons using the Goods, or where the Buyer is reselling the Goods, to the attention of its purchaser, all of Seller’s datasheets and/or instructions for the Goods including those referred to in Seller’s catalogues or brochures or which Seller has otherwise provided to or made aware Buyer aware of. Buyer shall take such steps as are necessary to secure that there will be available in connection with the use of the Goods adequate information about the use for which they were designed and about any conditions necessary to ensure that when put to that use they will be safe and without risk to health.
B. Buyer shall not, and where Buyer resells the Goods, shall require its purchaser shall not remove any marking on the Goods referring any user to Seller’s instructions and/or recommendations for use.
C. If either Buyer or its purchaser requires any information as to the use for which such Goods were designed and have been tested and about any conditions necessary to ensure that when put to that use they will be safe and without risk to health for the purposes of satisfying its obligations under any legal requirement relating to health and safety at work, Seller shall provide such information, subject to reimbursement of its out-of-pocket expenses incurred in providing such information.
Buyer shall indemnify Seller against all liabilities, losses, interest, costs and expenses which Seller may suffer or incur in connection with any claim by any third party alleging facts which, if established, would indicate a breach of Buyer’s undertakings, representations and warranties contained in this Condition 8 or a breach by any purchaser from Buyer of any undertaking which Buyer is obliged in this Condition 8 to require from such purchaser.
A. Nothing in this Agreement changes the ownership of any pre-existing Intellectual Property Rights. Intellectual Property Rights created specifically for the Buyer as part of the Deliverables shall belong to the Buyer and all other Intellectual Property Rights shall belong to the party that created them.
B. Condition 9C applies where a claim is made against Buyer that any part of the Goods or any use of the Goods for their intended purpose, infringes the Intellectual Property Rights of any person except where:
C. Provided that Buyer gives Seller prompt notice in writing of any claim of the type referred to in Condition 9B and allows Seller (if it so wishes) the entire control of the defence and settlement of the claim, Seller will pay any costs and damages awarded against Buyer in proceedings brought upon the basis of any such claim.
D. If any claim of the type referred to in Condition 9B is made or is in the opinion of Seller likely to be made, then either:
E. Seller shall have no other or further liability in respect of the alleged infringement of any Intellectual Property Rights other than as specified in this Condition 9.
F. All drawings, materials, specifications and other data supplied by Seller (“Materials”) and all Intellectual Property Rights in them shall remain the property of Seller and, except where they have already been placed in the public domain by Seller, Buyer shall keep the Materials confidential and shall not use them for any purpose other than that for which they were supplied. Buyer shall destroy or return the Materials to Seller immediately upon Seller’s request and in any event, promptly upon Buyer’s requirements for the Materials having been satisfied.
The Buyer and any third party or natural person in any legal relation with the Buyer should not publish the photos, pictures, drawings or descriptions of disassembled Goods, which discloses intellectual property of the Seller. If they are already published by the aforementioned person, they should be unpublished within five days from the receipt of the notice provided by the Seller. If the Buyer and any third party or natural person in any legal relation with the Buyer does not unpublish the aforementioned information and the Seller confronts business damage, the Seller can claim damages for this purpose.
THIS CONDITION SETS OUT SELLER’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, MISREPRESENTATION OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH THE CONTRACT.
All warranties, conditions, and terms implied by law are excluded to the fullest extent possible. Nothing in these Conditions excludes or limits Seller’s liability for death or personal injury caused by Seller’s negligence, or for fraud or fraudulent misrepresentation, or for any other matter in respect of which it would be unlawful for the Seller to exclude or restrict its liability. Subject to Condition 10B and 10C above, Seller’s total liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, or otherwise arising under or in connection with the Contract is limited to EUR 20,000 or the total price paid by Buyer under the Contract, whichever is greater. Further, and subject to such total liability:
Where Buyer resells the Goods or Deliverables by incorporation into Buyer’s products, Buyer shall indemnify Seller against any third party claims arising out of defects in Buyer’s products. This does not apply where the defect is caused by Seller’s Goods or Deliverables.
E. Seller’s acceptance of Buyer’s order is conditional on the receipt of any export licence, permit, answer to a rating enquiry from the applicable government(s), or other documentation required by the relevant authorities to comply with applicable export controls. Buyer acknowledges that Seller’s compliance with such export controls may delay a shipment and, without prejudice to Condition 3A, agrees that Seller is not liable for such delay.
If Buyer intends to export or re-export any item after receipt from Seller (including deemed exports), Buyer shall request and obtain all necessary licences for the use and/or export of the item.
F. If any term or provision of the Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term of the Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
G. Seller’s failure or delay to insist upon strict performance of any provision of the Contract, or to exercise any right or remedy provided under the Contract or by law, shall not be deemed to be a waiver thereof, or of any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
The Buyer is informed and agrees that the data obtained while implementing the Contract or Purchase Order will be processed in the Buyer's IT system.
The Contract and any dispute or claim arising from or in connection with it (whether contractual or non-contractual) shall be governed by and interpreted in accordance with Slovenian law and Buyer irrevocably submits to the exclusive jurisdiction of the Slovenian courts, but Seller may enforce the Contract in any jurisdiction. The application of the 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.