General Sales Terms and Conditions

 

1.  Scope of Application

 

These conditions apply to the of Supply of Machinery and Spare Parts (hereinafter referred to as “the Supply” ) made by Forest Wood Ltd ( hereinafter referred to as “the Supplier” ) to the client who receives the Supplier’s goods or to whom the Supplier’s quotation, invoice or acknowledgement of order is addressed to (hereinafter referred to as “the Buyer ” ).

 

2.  General

2.1 The contract shall come into effect upon receipt of the Supplier’s written acknowledgement by stating its acceptance of the order ( Order Confirmation ) by the Buyer . The contents of the contract shall be governed exclusively by the Supplier’s letter of Confirmation together with these General Conditions for the Supply of Machinery and Spare Parts. Provided also that, in particular, the necessary permits have been obtained from the authorities by the Buyer and the agreed payment security has been provided.

2.2 General conditions of the Buyer shall only be valid if expressly accepted in writing by the Supplier.

2.3 All agreements and legally relevant must be made in writing.

           

3.  Scope of  Supply

   

 The scope of the Supply is exhaustively set out in our Order Confirmation and any appendices thereto.

 

4. Designs, Technical Documentation and Software

 

4.1 Designs, drawings, technical documentation and data contained in software are only binding insofar as they form an integral part of the contract.

4.2 The Supplier retains the rights to designs, drawings, technical documents and software whilst the Buyer acknowledges these rights and shall not make same available to third parties without the prior written consent of  the Supplier.

4.3 If the Supply includes software, the Buyer, is hereby granted the non-exclusive and non-transferable right to use the software to the purpose. The Buyer is not entitled to make copies (except for archiving purposes, error searches or for the replacement of defective data carriers or to update, upgrade or make any other extensions to the software. The Buyer may not disassemble, decompile, decipher or reverse engineer the software without the prior consent in  writing of the Supplier. If the Buyer breaches one of these conditions, the Supplier is entitled to immediately revoke the right to use the software.

 

5. Regulations and Standards

  

5.1 The Buyer shall, at the latest when placing the order, refer to the Supplier, in writing, to the standards and regulations applicable to the provision of the Supply, the mode of the Supply and to health and safety.

5.2 Unless otherwise agreed, the Supply shall comply with those standards and regulations at the  place of the destination of the Supply, of which, the Supplier has been informed by the Buyer according to Clause 5.1 above.

 

6. Reservation Notice

 

Express reservations by the Supplier’s personnel regarding  instructions, directives or measures by the Buyer or regarding actual circumstances may be made in writing or orally and are deemed to be reservation notices by the Supplier relieving  the Supplier of any liability.

 

7. Prices

 

7.1 All prices are net, CFR or CPT including packing, without any deduction whatsoever, unless quoted differently. Any and all additional costs, such as for              packing, insurance and permits shall be borne by the Buyer. Packing material is not returnable unless specified in the Order Confirmation.

7.2 Taxes, including, without limitation, value added taxes (VAT), levies, fees, social security contributions and the like, which the Supplier or its personnel must pay in connection with this contract or its fulfilment, in particular for supplies and services outside the territory as well as the administrative costs connected therewith, shall be borne by the Buyer.

If taxes, including, without limitation, VAT, levies, fees, social insurance contributions or the like are levied against the Supplier or administrative costs are incurred, they shall be reimbursed by the Buyer within 30 days of            receipt of a copy of the respective documents

7.3 The Supplier reserves the right to adjust the prices in the event that

 

-          The delivery period is extended for any of the reasons set out in Clause 10.4; or

-          The nature or the scope of the Supply is changed; or

-          The documents provided by the Buyer are not in conformity with the actual circumstances or are incomplete; or

-          Laws, regulations or generally accepted rules of interpretation are changed after the submittal of the tender.

 

8.   Terms of Payment

 

8.1 Payments shall be made by the Buyer as per Supplier’s Order Confirmation at the Supplier’s domicile, net without no deduction for  cash discount, expenses, taxes, levies, fees, duties and the like.

8.2 The Buyer may neither withhold nor reduce payments due to complaints, claims or counterclaims not accepted by the Supplier in writing.

8.3 The dates for payment shall be complied with even if the dispatch, transportation, any installation or acceptance of the Supply is delayed or made impossible to reasons for which the Supplier is not responsible or if  immaterial parts of the Supply are missing or if post-delivery work, that does not make the use of the Supply impossible, is to be carried out.

8.4 If the advance payment or agreed payments security is not provided in accordance with terms of the contract, the Supplier shall be entitled to either adhere to or terminate the contract and shall, in either case, be entitled to claim damages including compensation for loss of profit.

If the Buyer, for any reason, is in arrears with any other payment, or if the Supplier is seriously concerned that it will not receive payments in total or in due time because of circumstances having taken place since the entering into the contract, then the Supplier  without prejudice to any other claims, may suspend the further  performance of the contract and retain any of the Supply ready for dispatch until new terms of payment and delivery have been agreed and until the Supplier has received sufficient security.  If such agreement cannot be reached within a reasonable time, or if the Supplier does not receive sufficient security, the Supplier may terminate the contract and claim damages,including  compensation for loss of profit.

8.5 If the Buyer exceeds the agreed periods of payments, it shall be liable, without reminder and with reservation of the right to bring further claims, for interest at a rate depending on the terms prevailing at the Supplier’s bank, but not less than 5 percent per annum.  The contractual payment obligations continue to remain in force.

 

9. Reservation of Title

 

The Supplier shall retain ownership of the Supply until receipt of full payment in accordance with the contract.

The Buyer shall take all measures necessary for the protection of the Supplier’s property and ensure that the title of the Supplier is not prejudiced.  In particular, the Buyer shall arrange for any entry in the public registers in the country of its domicile necessary for a valid reservation of the Supplier’s title.  The Buyer shall bear the costs of such entry.  If the Buyer fails to arrange for such entry, it shall be fully liable to the Supplier.

 

10.   Delivery Period

 

10.1 The delivery period shall commence as soon as the contract comes into effect and the advance payments due on placing the order have been made or upon receipt of the respective payment instruments.

10. 2 The delivery period shall be deemed to have been complied with if, before its expiry, the notice of readiness of the Supply for the dispatch has been sent.

10.3 Compliance with the delivery period is conditional upon the Buyer fulfilling all its contractual and non-contractual obligations to the Supplier.

10.4  The delivery period shall be extended for a reasonable term if:

a)        The information required for the performance of the contract is not available to the Supplier in time or is incomplete, or if the Buyer subsequently changes such information; or

b)       The Buyer or a third party is in delay with work it has to execute, or the Buyer is in delay with the performance of its contractual obligations; or

c)        Impediments exist which the Supplier , despite the use of the required level of care cannot prevent, regardless of whether such impediments arise at Supplier’s, the Buyer’s or a third party’s premises.  Such impediments include, in particular, significant operating breakdowns, accidents, labour conflicts, late or deficient delivery of raw materials, semi-finished products, important work parts being rejected, measures taken or omissions by any state authorities; or

d)       Any other circumstances arise for which the Supplier is not responsible.

10.5 If the delivery is not made on time, the Buyer may claim damages for delayed delivery if it can be proved that the delay was caused through the fault of the Supplier. Damages for delayed delivery shall not exceed ½ per cent for each full week of delay and shall in no event exceed 5 per cent of the contract price of the part of Supply in delay. After reaching the maximum damages for delayed delivery, the Buyer shall grant the  Supplier a reasonable extension of time in writing. If such extension is not complied with for reasons for which the Supplier is not at fault, the buyer may reject the delayed part of the Supply. If a partial acceptance is economically not justifiable on the part of the Buyer, the Buyer may terminate the contract.

In such an event, the Supplier shall refund the payments made for the parts of the Supply affected by the termination.

10.6 If a specific date is agreed instead  of a delivery period, such date shall correspond to the last day of a delivery period. Clauses 10.1 to 10.5 shall apply thereto.

10.7 All claims of the Buyer arising out from or in connection with delays in the performance of the contract are regulated expressly and exhaustively by this Clause 10. Other and further claims are excluded. This limitation of liability does not apply in the event of negligence or wilful misconduct by the supplier

 

11.   Passing of Risk

 

If dispatch of the Supply is delayed at the request of the Buyer or due to reasons for which the Supplier is not responsible, the risk shall pass to the Buyer at the time originally foreseen for the Supply to be dispatched from Supplier’s premises.  From this time on, the Supply shall be stored and insured on the account of and at the risk of the Buyer.

 

12.   Inspection and Acceptance of the Supply  

 

12.1 Insofar as it is normal practice, the Supplier shall inspect the Supply before dispatch. If the Buyer requests further testing, such as an acceptance test, this shall be agreed in writing and paid for by the Buyer.

12.2 The Buyer shall inspect the Supply within 30 days and shall immediately notify the Supplier in writing of any defects.  If the Buyer fails to do so, the Supply shall be deemed to be accepted.

12.3 To the extent that the Supplier is responsible for the notified defects, the Supplier shall remedy such defects as soon as possible, and the Buyer shall give the Supplier sufficient opportunity to do so. After remedy of such defects, an acceptance test shall be carried out at the request of the Buyer or the Supplier, provided that such acceptance test has been agreed in accordance with Clause 12.

12.4  Acceptance shall also be deemed as having taken place:

·              If the Buyer or his representative do not participate in a possible acceptance test;

·              If the acceptance test cannot be carried out on the date arranged for reasons for which the Supplier is not responsible;

·              If the Buyer refuses to sign the acceptance report;

·              As soon as the Buyer puts the Supply to use, places it in his warehouse or impliedly accepts the supply in any other way;

·              If the Buyer refuses acceptance without being entitled to do so.

12.5 All claims by the Buyer arising from or in connection with defects in the Supply are regulated expressly and exhaustively by this Clause 12. Other and further claims are excluded. This limitation of liability does not apply in the event of gross negligence or wilful conduct by the Supplier.

 

13.  Warranty

 

13.1 Warranty Period

The warranty period is that indicated in the Supplier’s Order Acknowledgement. The warranty period commences when the Supply leaves the works or upon the acceptance of the Supply or, if the Supplier also undertakes the installation of the Supply, upon completion thereof. 

If dispatch, transportation, any possible installation, commissioning or acceptance is delayed due to reasons for which the Supplier is not responsible, the warranty period shall end not later than 18 months after the Supplier’s notification that the Supply is ready for dispatch.

The warranty period shall expire prematurely if the Buyer or a third party undertakes inappropriate modifications or repairs to the Supply, unless authorised in writing by the Supplier, or if the Buyer, in the event of a defect, does not immediately take all appropriate steps to mitigate the damage and give the Supplier the opportunity remedy such defect.

13.2 Liability for Defects in Material, Design and Workmanship

Upon written request by the Buyer, the Supplier shall remedy within a reasonable period  any parts of the Supply which, before the expiry of the warranty period, are proved to be defective or unusable due to defective material, faulty design or poor workmanship, provided that the Buyer has notified the Supplier in writing of defects during the warranty period and immediately after discovery. The Buyer shall give the Supplier sufficient opportunity to carry out such remedial              works.  Replaced parts shall become the Supplier’s property.

13.3 Liability for Warranted Qualities

The warranted qualities of the Supply are only those qualities which have been expressly specified as such in the Order Acknowledgement.  Such warranties are valid until the expiry of the warranty period.  Evidence of the warranted qualities shall be provided by any possible acceptance test.

If the warranted qualities are not achieved or only partially achieved, the Buyer may initially only require the Supplier to carry out the necessary remedial works. The Buyer shall give the Supplier the necessary time and opportunity to do so.

If such remedial works fail completely or in part, the Buyer may claim such compensation as was agreed upon for such event, or, if such agreement was not made, a reasonable reduction in price. If, however, the defects are so major that they cannot be remedied within a reasonable time and provided the Supply cannot be used for its specified purpose, or if such use is considerably impaired, the Buyer may refuse acceptance of the defective part of the supply or, if partial acceptance is economically not justifiable, terminate the contract. In such an event, the Supplier is only liable for reimbursement of the sums paid to it for the parts of the Supply affected by the termination

13.4 Exclusion for the Liability for Defects

The Supplier in not liable if the Supply does not comply with the provisions of the contract and that non-compliance is caused by the Buyer itself.  If the Supply does not comply with the contract, that non-compliance is deemed to be caused by the Buyer itself, in particular, if it was the result of defective maintenance, failure to observe the operating instructions, excessive use, use of any unsuitable operating means, chemical or electrolytic influence or work not undertaken by the Supplier.

The Supplier is furthermore not liable if the Supply does not conform with the provisions of the contract as a result of, in particular, normal wear and tear, improper use by third parties, use of spare parts or materials belonging to the Buyer or third parties, maintenance by third parties, natural disasters or accidents.

13.5 Exclusivity of Warranty Claims

Any warranty claims of the customer are expressly and exhaustively regulated by this Clause 13. Other claims and further claims are excluded.

 

14.   Contract Performance

 

14.1 In all cases where contractual performance is not duly effected and where not expressly covered by these General Conditions, the Buyer shall grant the Supplier a reasonable additional period to remedy the performance. If such additional period lapses and is unused due to the fault of the Supplier, the Buyer may terminate the contract with respect to the part of the Supply not in conformity with the contract or which is anticipated not to be in conformity with the contract. In such an event, the Supplier shall only be liable for reimbursement of sums paid to it for the parts of the Supply affected by the termination.

14.2 In the event of a contract termination by the Buyer in accordance with clause 14.1 above the provisions of  Clause 18 shall apply with regard to any liability of the Supplier.

 

15.     Termination of Contract by the Supplier

 

The contract shall be amended as appropriate if unforeseen events substantially change the economic effect or the content of the Supply or substantially affect the fulfillment of the contract by the Supplier, or if the performance of the Supply becomes entirely or partially impossible. Insofar as such amendment is not economically justifiable, the Supplier may terminate the contract or the individual provisions affected thereby.

If the Supplier intends to terminate the contract, it shall, after having recognized the consequences thereof immediately inform the Buyer; even if an extension of the time for completion has previously been agreed. In the event of termination of the contract, the Supplier shall be entitled to payment for the Supply already provided. Claims for damages by the Buyer are excluded.

 

16.    Export Controls

 

The Buyer acknowledges that the Supply may be subject to certain national statutory legal provisions and regulations regarding export control and, without export and re-export permits from the competent authorities, may not be sold, leased or otherwise transferred or used for a purpose other than that agreed upon. The Buyer agrees to comply with such provisions and regulations. The Buyer acknowledges that such provisions and regulations may change and are applicable to the contract according  to the wording valid at the time.

The Supply may neither directly nor indirectly be used in any way in connection with the design, production, use or storage of chemical, biological or nuclear weapons or carrier systems.

 

17.    Data Protection

 

The Supplier may, whilst performing the contract, process personal data of the Buyer. The Buyer agrees in particular that the Supplier may disclose such data to third parties in Malta and abroad for the development and cultivation of business relationships.

 

18.   Limitation of Liability

                    

18.1 All claims by the Buyer for damages for production interruption, loss of usage, loss of orders, loss of profit, claims of third parties or claims for indirect or  consequential damage, irrespective of the legal basis for such claims are excluded. The total liability of the Supplier arising from or in connection with the contract or  the breach thereof is limited to the sums paid by the Buyer for the Supply  provided.

18.2 Claims by the Buyer arising out of or in connection with the contract or the breach thereof are expressly and exhaustively regulated in these conditions. Other and further claims that go beyond that are excluded.

18.3  This limitation of liability shall not apply in the event of gross negligence or  willful misconduct by the Supplier.

 

19.  Right of Recourse by the Supplier

 

In  the event of injury to persons or damage to property of third parties as a result of actions or  omissions by the Buyer or its personnel for which the Supplier is held liable, the Supplier shall  have a right of recourse against the Buyer.

 

20.   Miscellaneous Provisions

 

20.1 Amendments to the contract must be in writing to become effective.

20.2 If a provision of these General Conditions should prove to be wholly or partially ineffective, the parties shall replace such provision with a new provision that comes close as possible to the legal and economic effect of the original  provision.  

 

21. Jurisdiction and Applicable Law   

 

21.1 Place of jurisdiction shall be Malta (Europe). The Supplier may, however, also bring an action before the courts of the Buyer’s domicile.           

21.2 This contract shall be governed by Maltese Laws.  The “United Nations Convention on International Sale of Goods “ of April 11, 1980 , shall not apply. 

 

22.  Appendices     

 

Any Appendix will form an integral part of these General Conditions for  the Supply of Machinery and Spare Parts. In the event of discrepancies, the Appendices in our offer shall prevail over these General Conditions: