Contract for Individual Sale of Peri-dent-products
General Terms and Conditions for Individual Sale of Peri-dent-products
1. Definitions, etc.
1.1 The Parties
The Individual Sale Contract concerning sale of Peri-dent-products is entered into between Peri-dent Ltd., acting as the seller (“the Supplier”) and the other Party acting as the buyer (“the Customer”), and shall be binding when the Contract Document is signed by both Parties. The Supplier and the Customer shall collectively constitute “the Parties” (and individually constitute “a Party”) to the Contract.
1.2 The Contract
The complete agreement between the Parties concerning a certain delivery/certain deliveries of Peri-dent -products (“the Contract”) shall exhaustively consist of the following documents : (i) These General Terms and Conditions for Sale of Peri-dent-products (“the GT&C”), (ii) a Contract Document for Individual Sale of Peri-dent-products (iii) written supplementary agreements (if any), including agreements entered into by exchange of letters, facsimiles or e-mails between the Parties which apply to a certain delivery/certain deliveries of Peri-dent-products.
The Customer’s standard terms and conditions and any terms and conditions in or referred to in documents made by or provided by the Customer shall not form part of the Contract, unless such terms and conditions are expressly accepted by the Supplier in writing. The Supplier’s marketing and promotional material (on website, in brochures, in catalogues, etc.), are to be considered as illustrative only, and their contents shall form no part of any Contract.
1.3 Written notices
A notice which is received by a Party from the other Party by letter, facsimile, telex or email shall be regarded as a “Written notice” according to the Contract.
1.4 The Peri-dent-products
The products which shall be delivered to the Customer according to the Contract are called “the Peri-dent-products”.
2. Terms of payment and delivery – Risk in and title to the Peri-dent-products
Terms of payment and delivery shall be as stated in the Contract Document or in other parts of the Contract.
If no terms of payment and/or delivery are agreed upon in other parts of the Contract, payment shall take place within 30 (thirty) days net from date of invoice. Unless otherwise agreed in the Contract, payment shall include VAT, duties (if any) and delivery costs (if any).
Delivery shall take place according to INCOTERMS 2010 at the place stated in the Contract Document or in other parts of the Contract. If another delivery place/INCOTERM is not stated elsewhere in the Contract, the Peri-dent-products shall be supplied Ex Works Peri-dent Star’s plant in Malaysia.
The risk in the Peri-dent-products shall pass to the Customer upon delivery of the products. If delivery shall take place Ex Works (EXW) INCOTERMS 2010, delivery shall be deemed to have taken place when the Peri-dent-products are available at Peri-dent Star’s plant in Malaysia.
Title to the Peri-dent-products shall remain by the Supplier and shall not pass to the Customer until payment in full for the same has been received by the Supplier.
3. Breach of Contract
Breach of contract does not occur in cases where late delivery/non-delivery or defects/deviation from agreed quality or quantity concerning the Peri-dent-products is due to (i) the Customer’s circumstances, failures, acts or omissions or (ii) a Force majeure event according to clause 4 below.
The Supplier shall inform the Customer about actual or anticipated delay or non-delivery of any Peri-dent-products and shall, if possible, indicate when the delivery can be expected to take place. If a delay exceeds 8 (eight) weeks from the agreed/estimated delivery date, the Customer may cancel the Contract by giving the Supplier a Written notice. The remedies under this clause 3.1 are exhaustive and exclusive of any other remedy for delay in delivery or non-delivery.
A Peri-dent-product is defective if, and only if, (i) it does not conform to the specifications and requirements in the Contract, or (ii) it has a substantial defect in its material and/or workmanship, at the time of delivery and in a period of 12 (twelve) months after delivery. If the printing of EAN or similar codes on the Peri-dent-products and/or their packaging has commonly occurring printing faults, the Peri-dent-products in question shall not be regarded as defective. Unless explicitly stated in the Contract, it shall not be regarded as a defect that the Peri-dent-products are not fit for a particular purpose or cannot meet requirements for their intended use.
If Peri-dent-products are defective according to the provisions above in clause 3, the Supplier shall (provided that remedy is claimed by the Customer) at its option:
(a) Replace the defective Peri-dent-products with conforming Peri-dent-products without any additional payment by or expenses for the Customer, or
(b) if possible, rectify the defective Peri-dent-products without any additional payment by or expenses for the Customer, or
(c) reduce the price of the defective Peri-dent-products which shall be retained by the Customer, subject to agreement between the Parties regarding the size of the price reduction. However, price reduction shall only be an option if it is possible for the Customer to utilize the defective Peri-dent-products for the ordinary intended purposes.
If the Supplier has delivered defective Peri-dent-products to the Customer, the Customer shall be entitled to claim damages for direct losses it suffers due to the defective Peri-dent-products in question. The Supplier shall not be liable (i) for loss of profits (whether such loss is a direct or an indirect loss), (ii) for loss of goodwill, or (iii) for any other indirect or consequential loss of any nature whatsoever which the Customer incurs or suffers due to the defective Peri-dent-products. The liability of the Supplier in relation to the defective Peri-dent-products shall in any case be limited to the agreed price for the defective delivery/deliveries in question, unless further liability follows from applicable mandatory law, ref. clause 9 below.
The Customer shall have no remedy (including the right to claim damages) for lack of conformity/ defects if the Customer fails to notify the Supplier thereof in a Written notice (i) within 30 (thirty) days after the Customer has received the Peri-dent-products, or, (ii), within 5 (five) days after the Customer has received the Peri-dent-products in case of visible damages/defects occurred during transportation. In any case of lack of conformity/ defects the Supplier shall be allowed to investigate the defective Peri-dent-products, and, if necessary, be provided with access to the Customer’s premises and samples of the defective Peri-dent-products.
The remedies under this clause 3.2 are exhaustive and exclusive of any other remedy for non-conformity/defects.
3.3 Breach of other obligations under the Contract
If the Customer fails to pay the Supplier according to the Contract, the Supplier may, at its option, suspend or cancel all future deliveries of Peri-dent-products to the Customer. In case of any delay in payment/non-payment, the Supplier is also entitled to claim interest on overdue payments and make other claims (if any) in accordance with applicable law, ref. clause 9.
If a Party substantially breaches other obligations under a Contract than those concerning delayed delivery/payment, non-delivery/non-payment or defective Peri-dent-products, the other Party shall be entitled to (i) terminate the Contract with immediate effect by sending the defaulting Party a Written notice, and/or to (ii) claim damages for all direct losses it suffers due to such breach of contract. Indirect or consequential damage may in such cases be claimed only if the defaulting Party has acted negligently.
The remedies under this clause 3.3 are exhaustive and exclusive of any other remedy for breach of the obligations mentioned in this clause.
3.4 Products made according to the Customer’s specifications and/or instructions
If the Supplier shall deliver Peri-dent-products in accordance with the Customer’s specifications and/or instructions (“Customer-specified products”), the Customer shall ensure (i) that such specifications/instructions are accurate and fit for the purpose and intended use, and (ii) that any Peri-dent-products made in accordance with such specifications/instructions will not result in (a) an infringement of any rights of the Supplier or a third party (including, but not limited to, any intellectual property rights), or (b) a breach of any applicable law or regulation.
If the Supplier has reason to believe that the Customer has failed to comply with the provisions in this clause 3.4, first paragraph, the Supplier shall be entitled to terminate – without any liability toward the Customer – any production or delivery of Customer-specified products which has started.
The Supplier shall not be liable for any costs or losses incurred by the Customer or a third party due to the Customer’s specifications and/or instructions regarding the Customer-specified products or their production, provided that the products and the production have been made or is carried out in accordance with the Customer’s specifications and/or instructions. The Customer is liable and shall bear all costs and losses suffered by the Supplier or a third party due to the Customer’s harmful specifications and/or instructions or to the Customer’s failure to comply with the provisions in this clause 3.4, first paragraph.
4. Force majeure events
A Force majeure event connected to the performance of any Contract mean any circumstance outside the Party in question’s control which impedes the performance of any obligation under the Contract. No breach of contract occurs if the Party in question proves that compliance with the Contract has been prevented due to a Force majeure event.
The following events shall in any case be regarded as Force majeure events if they affect the Party in question’s performance of its obligations under the Contract:
(a) Acts of God, fire, explosion, flood, lightning, tempest, other extreme weather conditions or similar conditions or events;
(b) War, civil war, acts of terror, rebellion, riots, demonstrations or similar events;
(c) Restrictions, regulations (on import or export etc.), embargos, refusal to grant permissions or similar events on part of any governmental authority or international organisation;
(d) Strikes (including local strikes), lockouts or other industrial actions/trade disputes of whatever nature (whether involving employees of a Party or third parties);
(e) Breakdown of the Party’s IT systems;
(f) Defaults of a supplier, sub-supplier/ subcontractor engaged by the Supplier (including, but not limited to, a third party which produces the Peri-dent-products, fully or in part, or a third party with transport obligations before delivery takes place); and
(g) Situations where changes in economic conditions, prices of raw materials or increased costs etc. has made it extremely onerous to perform for the Party in question. (See also clause 5.)
When /if the Force majeure event ends, the Party in question shall resume its obligations pursuant to the terms and conditions in the Contract as soon as possible. If a Force majeure event has prevented performance under the Contract for 60 (sixty) days, each Party may cancel the Contract without any liability toward the other Party.
5. Renegotiation in case of Hardship, etc
If, at any time before the agreed delivery of Peri-dent-products, there is a substantial change in economic, technological or market conditions which has made or will make it unfair or unreasonable for the Supplier to perform its obligations under the Contract (but which is not a Force majeure event, see clause 4 (g)), the Customer shall, at the Supplier’s request hold a meeting with the Supplier in order to agree on a fair adjustment of the terms and conditions of the Contract.
If the Parties cannot agree on the said adjustment, the Supplier may, at its option, cancel the Contract with immediate effect by sending a Written notice to the Customer. Such cancellation shall not in itself give the Customer any right to claim any damages for losses.
6. Intellectual Property
Unless otherwise agreed in the Contract, the Supplier owns and shall continue to own any and all intellectual property (“IP”) connected to the Peri-dent-products and the production of such products, i.e. formulas, know how, patents, designs, trademarks, trade names, trade secrets, copyrights and any other IP rights.
Nothing in the Contract or in the relationship between the Parties under the Contract shall constitute any grant of licence for the Customer to use any IP belonging to the Supplier.
The Customer warrants that it will not use, copy alter, modify or develop further any Peri-dent-product or the IP for any purpose other than expressly permitted by the Supplier in the Contract. This clause shall survive the termination of the Contract.
A Party shall not, except with the prior consent of the other Party in a Written notice, disclose to a third party or use/copy for its own or a third party’s purposes, any information concerning the Contract or the other Party and/or its subcontractor(s) (technical, economical or other information) which (i) is not in the public domain, and (ii) the Party in question has obtained access to by entering into the Contract (“Confidential Information”). The said confidentiality obligations shall survive the termination of the Contract.
Each Party may, however, give Confidential Information (i) to authorities according to a binding order/regulation, (ii) to other persons in the same group of companies as the Party in question and/or (iii) to a Party’s external advisers (attorneys-at-Law etc.), provided that the receiver of the Confidential Information already has or undertakes the same or similar confidentiality obligation as stated above in this clause 7.
A Party is not entitled to assign, wholly or in part, its rights and/or obligations under the Contract to a third Party without the other Party’s prior consent in a Written notice or written agreement with the other Party.
Provided that a Party does not assign the rights and/or obligations under the Contract to a competitor of the other Party, the Party in question shall, however, be entitled to assign, wholly or in part, the rights and/or obligations under the Contract to a third party in connection with an acquisition, a merger and similar transactions or reorganisations.
9. Governing law and venue
The Contract shall be construed, interpreted and governed in all respects by the laws of Norway.
Unless the Parties otherwise agree, all disputes concerning the Contract which cannot be amicably settled by the Parties within 2 (two) months, shall be finally settled by arbitration in Oslo, Norway, according to the Norwegian law on arbitration, dated May 14th 2005 no. 25. The arbitration proceedings and the decision shall be in the English language, and shall be regarded as Confidential Information according to clause 7 above.
The Supplier may demand that the dispute resolution instead shall take place by ordinary court and/or by arbitration at another place where the Supplier has an office address. If the Supplier decides that the dispute resolution shall take place in Scotland, the Contract shall be construed, interpreted and governed in all respects by Scots law.