1.1. The Systemair Terms and Conditions for Sales shall apply to all sales contracts between Systemair and its customers. Any modifications of or deviations from the Systemair Terms and Conditions for Sales must be agreed in writing between Systemair and its customer.
1.2. The Systemair Terms and Conditions for Sales shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions shall only become part of the Contract if the parties have expressly agreed and confirmed their validity in writing. This requirement of consent shall apply in any case.
1.3. Any Systemair Group company that is part of the Contract with the Purchaser may obtain the benefit and enforce any term of the Contract.
1.4. The Purchaser shall not be entitled to assign, sub-contract, dispose of or otherwise transfer any of its rights or obligations without the prior written consent of Systemair.
1.5. The Systemair Terms and Conditions for Sales are subject to at least annual review and update whereby any changes shall apply immediately and without any further notice. The latest version of the Systemair Terms and Conditions for Sales are available on the Systemair website (https://www.systemair.com/en/terms-conditions).
· Purchaser refers to the party who purchases the Products and Services from Systemair.
· Systemair refers to the Systemair Group, including its subsidiaries and affiliates/ entities. In the context of orders/contracts/order confirmations, it refers to the Systemair entity which is/will be the contracting party.
· Products refers to the Products and Services supplied by Systemair including software and documentation.
· Business day means a day from Monday to Friday, on which Systemair is ordinarily open for business, excluding bank- and statutory holidays (in the country of the Systemair entity that is the Purchaser's contractual partner).
· Contract means the purchase contract regarding the Products between Systemair and the Purchaser which is subject to the Systemair Terms and Conditions for Sales by direct attachment to or reference in the Contract and/or the Order Confirmation.
· Order Confirmation means a written confirmation issued by Systemair to the Purchaser where Systemair confirms the Purchaser’s order of the Products including price and preliminary time of delivery.
· The Systemair Terms and Conditions for Sale means these terms and conditions including any updates of these terms and conditions which has been made public and available on the Systemair website (https://www.systemair.com/en/terms-conditions).
3.1. Systemair’s offers are subject to change and are non-binding. This also applies if Systemair have provided the Purchaser with any catalogues, technical documentation (e.g., drawings, plans, calculations etc.), other product descriptions or documents, by post, electronically or downloaded from the Systemair website/s. All orders placed by the Purchaser are therefore subject to final written acceptance by Systemair through an Order Confirmation.
3.2. Systemair reserves the right to refuse any order without prior notice. Notwithstanding the aforementioned Systemair undertakes to inform the Purchaser of the reasons for such refusal as soon as it becomes feasible, unless prohibited by law.
3.3. Only when Systemair acknowledges an order by sending an Order Confirmation to the Purchaser, a Contract between Systemair and the Purchaser is established. The Contract then exists between the Purchaser and the Systemair entity that made the offer/confirmed the order, so that only this Systemair entity is contractually entitled/obliged in relation to the Purchaser.
4.1. All drawings and technical information relating to the Products or its manufacture, supplied by Systemair, shall remain the sole property of Systemair.
4.2. Drawings, technical documents, or other technical information provided by Systemair shall not, without the consent of Systemair, be used for any other purpose than that for which they were provided, nor otherwise be used or copied, reproduced, transmitted, or communicated to a third party.
4.3. Systemair reserves the right to, at all times and in its sole discretion, change technical data and drawings without notice. However, if necessary, Systemair shall inform the Purchaser of such changes when and if it is reasonably practicable.
5.1. Prices for the Products are either as per Systemair’s official pricelist (the most current available) submitted to the Purchaser or as per a quotation submitted to the Purchaser in writing. If the validity of an offer has expired before the order is placed by the Purchaser, a new offer must be obtained from Systemair in writing.
5.2. Unless otherwise agreed by Systemair in writing, and always subject to Clause 3.2, the price for the Products shall be as set out in the Systemair Order Confirmation.
6.1. INCOTERMS® 2020 are agreed as terms of delivery for the Products. The specific Incoterm is agreed and offered in the Systemair quotation and confirmed in the Order Confirmation. If no specific delivery term has been agreed, the delivery shall be as per Incoterm Free carrier (FCA) at the named Systemair company issuing the quotation or Order Confirmation.
6.2. The passing of risk is following Incoterms. Should an Incoterm be agreed where the risk is with Systemair as sender, and a loss or damage of Products occur during transportation, the Purchaser shall inform Systemair in writing about the damage immediately, indicating the order number, item number of the Product, date and time, supported by pictures of the damaged products where the damage is clearly visible. In addition, the Purchaser must state the damages on the transport document and provide a copy to Systemair. For any hidden damage which happened during transportation there is a deadline of fourteen (14) days after receipt of the Products for sending a claim to Systemair. Thus, Systemair is not liable for any damages where the claim/information comes later than fourteen (14) days after receipt of the Products.
6.3. Delivery dates provided by Systemair are approximate and subject to change. In case of any delays in delivery date Systemair shall notify the Purchaser, with an indication of when the delivery can be expected.
6.4. If the Purchaser anticipates not to be able to accept delivery of the Products at the time agreed in the order confirmation, the Purchaser shall nevertheless pay any part of the purchase price which becomes due at the time for delivery, as if delivery had taken place at the time for delivery.
6.5. Systemair offers to arrange for storage of the Products at the expense of the Purchaser, without obligation. In such cases the risk of damage or loss shall pass over to the Purchaser as if the Products was delivered, according to Incoterms.
6.6. If, for any reason which is not attributable to Systemair, the Purchaser fails to accept delivery, all cost incurred for the delivery including the further handling (e.g., storage) of the Products shall be borne by the Purchaser. Should delivery not be accepted by the Purchaser within a final reasonable period, Systemair may, in its sole discretion, by written notice terminate the Contract in whole or in part.
7.1. Payment shall be made in accordance with the payment terms stipulated in the Order Confirmation.
7.2. Whatever the means of payment used, payment shall not be deemed to have been carried out before Systemair’s account has been irrevocably credited for the amount due.
7.3. If the Purchaser fails to pay by the agreed date, Systemair shall be entitled to interest from the day on which payment was due. The current interest rate can be obtained on request.
7.4. In case of late payment, and in case the Purchaser fails to give an agreed security by the stipulated date, Systemair may after having notified the Purchaser in writing, suspend the performance of the Contract until payment is received, or where appropriate, until the Purchaser provided agreed security.
7.5. If the Purchaser has not paid the amount due within three (3) months from the agreed payment date, Systemair shall be entitled to terminate the Contract by written notice to the Purchaser and, in addition to the interest and compensation for recovery costs according to this Clause 7, to claim compensation for the loss Systemair incurs due to the Purchases inability to complete agreed payment.
8.1. The Products shall remain the property of Systemair until paid for in full.
8.2. The Purchaser shall, at the request of Systemair, assist in taking any measures necessary to protect Systemair’s title to the Products.
8.3. The retention of title shall not affect the passing of risk under Clause 6.2.
9.1. Systemair provides a warranty that the Products are free from defects in design, materials, and workmanship for a period of one (1) year from invoice date unless otherwise confirmed by Systemair in the Order Confirmation.
9.2. Upon delivery the Purchaser must inspect the Products immediately and notify Systemair in writing of any defects without undue delay. The Purchaser must promptly notify Systemair of any defects or non-conformities.
9.3. Systemair shall only be liable for defects which appear under the conditions of operation and maintenance provided for in the operating and maintenance instructions provided by Systemair with the Products, and only when the Products are properly used. Systemair shall not be liable for defects caused by circumstances arising after the risk has passed to the Purchaser or defects due to faulty maintenance, incorrect installation or wiring, faulty repair organized by the Purchaser or alterations carried out on the Products. Normal wear and tear or deterioration are excluded from the warranty provided by Systemair.
9.4. Systemair shall not be liable for defects arising out of materials provided or a design stipulated or specified by the Purchaser.
9.5. When a defect in a component of the Product has been remedied, Systemair shall be liable for defects falling under the warranty conditions for one (1) additional year from the date of remediation. This only applies to the replaced/repaired parts. For all other components and devices, the original warranty period remains unaffected.
9.6. Returns of defective Products are subject to an agreed return procedure and can vary case by case.
9.7. It is at the sole discretion of Systemair whether to repair or replace a defective Product.
9.8. Unless otherwise agreed, the Purchaser shall bear all costs incurred by Systemair in remedying a defect, if the location of the Products differs from the location agreed as the place of delivery of the Products.
9.9. If the Purchaser has reported a defect, and no defect for which Systemair is liable can be determined, the Purchaser shall reimburse Systemair for all costs incurred by Systemair as a result of the complaint (e.g., inspection costs, travel cost).
The Purchaser warrants that:
10.1. It shall not offer, promise, give, authorise, solicit, or accept any undue financial or advantage of any kind in any way connected with the performance of the Contract.
10.2. It shall comply fully with all applicable laws, regulations, rules, and statutory requirements relating to its receipt, use, handling, and maintenance (as appropriate) of the Products.
10.3. It shall comply fully with applicable national and international economic or financial sanction laws, trade embargoes and similar restrictions by the United Nations, European Union, United Kingdom, and the United States of America, or by any other competent authority.
10.4. It commits not to sell any Products to third parties whom the Purchaser have reason to assume will disregard or breach any sanction laws. The Purchaser shall provide, upon request, all required information relating to the final financial recipient, final destination and end-use of any Products subject to the Contract.
10.5. It shall comply fully with all applicable national and international laws on anti-money laundering and counter terrorist financing.
10.6. It has, and complies with all necessary permits, licenses, authorisations, policies, and procedures in place for the purposes of any applicable health and safety legislation by all its employees and other staff.
10.7. It shall immediately report to Systemair of any suspicious activity of which it becomes aware in relation to transactions directly or indirectly connected to the performance of the Contract.
10.8. The Purchaser agrees to hold Systemair harmless in full against any and all losses, liabilities, claims, damages, charges, penalties, costs or any expenses awarded against or incurred by Systemair in respect of any loss or damage or personal injury (including death) which arises out or in connection with the Purchaser’s breach of this Clause 10.
10.9. The Purchaser shall indemnify Systemair for any and all damages or losses incurred as a result of any breach of this Clause 10.
11.1. All intellectual property rights in the Products, including any embedded software, and in any technical information related to the Products, shall rest with Systemair or, in the appropriate case, with a third party which has licensed these rights to Systemair. Subject to any limitations that may have been agreed between the third party and Systemair, the Purchaser shall acquire a non-exclusive, perpetual, and transferable right to use these intellectual property rights but limited to the extent required by the purpose of the Contract. Systemair shall not be obliged to provide the Purchaser with the source code or with updates for any embedded software.
11.2. This Clause 11 shall also apply when the Product and/or software has been specifically developed for the Purchaser, unless otherwise agreed in writing between Systemair and the Purchaser.
11.3. Technical, commercial, and financial information, and information which has been declared as confidential or which must, by its very nature, be deemed to be confidential, disclosed in writing or orally by one party to the other, shall be treated confidentially. The information shall therefore not without the consent of the disclosing party in writing be used for any other purpose than that for which it was provided. It may not, without the consent of the disclosing party in writing, be transmitted, communicated, or otherwise disclosed to a third party.
12.1. Unless otherwise agreed, Systemair shall be liable to the Purchaser for the Product infringing patents, copyrights, or any other intellectual property rights of a third party in the Purchaser’s country. Systemair shall in such case indemnify the Purchaser and hold the Purchaser harmless against claims of third parties, provided that such claims are confirmed as valid by a final award issued by a competent authority, or a settlement approved by Systemair. Systemair shall however not be liable for the Purchaser’s loss of production, loss of profit, loss of use and loss of contracts, unless Systemair has been guilty of gross negligence.
12.2. Systemair shall have no liability for infringement of intellectual property rights arising out of:
· the Product being used elsewhere than in the Purchaser’s country.
· the Product being used otherwise than agreed or in a way Systemair could not have foreseen.
· the Product being used together with equipment or software not supplied by the Systemair, or
· a design or construction stipulated or specified by the Purchaser.
12.3. Systemair shall only be liable if the Purchaser notifies Systemair in writing without delay of any claim received and allowing Systemair to, in its sole discretion, decide how the claim shall be dealt with.
12.4. Defence against claims shall be on Systemair’s account. Systemair shall compensate the Purchaser for any amounts that the Purchaser is obliged to pay under a final award issued by a court, arbitral tribunal, governmental body or any similar authority, or a settlement approved by Systemair.
12.5. Infringement of intellectual property rights shall, at the sole discretion of Systemair, be remedied by for instance, but not limited to:
· Providing the right for the Purchaser to use the product,
· Adjusting the Product so that the infringement ceases, or
· By replacing the Product with another Product, which can be used without infringing applicable intellectual property rights.
13.1. Systemair shall not be liable for any damage to property or financial losses (including production downtime, loss of profit and other indirect damages) caused by the Product after time of delivery and whilst is the Product is in the possession of the Purchaser. Nor shall Systemair be liable for any damage to products manufactured by the Purchaser or to products of which the Purchaser's products form a part. This limitation of liability shall not apply in the event of intent or gross negligence on the part of Systemair or in the event of liability based on mandatory statutory provisions.
13.2. If Systemair incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Purchaser shall indemnify, defend, and hold Systemair fully harmless.
13.3. If a claim for damage as described in this Clause 13 is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof in writing.
13.4. Systemair and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product. The liability between Systemair and the Purchaser shall however be settled in accordance with Clause 10.
14.1. Either party shall be entitled to suspend performance of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by force majeure, meaning any of the following circumstances: industrial disputes and any circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and import or export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause 14.
14.2. A circumstance referred to in this clause whether occurring prior to or after the formation of the Contract shall give a right to suspension only if its effect on the performance of the Contract could not have been foreseen at the time of the formation of the Contract.
14.3. The party claiming to be affected by force majeure shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance. If a party fails to give such notice, the other party shall be entitled to compensation for any additional costs which were incurred, and which could have avoided had it had received such notice.
14.4. If force majeure prevents the Purchaser from fulfilling its obligations, the Purchaser shall compensate Systemair for costs which Systemair incurs in storing, securing, and protecting the Product and avoiding unreasonable interference with Systemair’s other activities.
14.5. Regardless of what might otherwise follow from the Systemair Terms and Conditions for Sales, either party shall be entitled to terminate the Contract by notice in writing to the other party if the performance of the Contract is suspended for more than six (6) months due to force majeure.
Unless otherwise explicitly stated in the Systemair Terms and Conditions for Sales or in case of gross negligence there shall be no liability for either party for loss of production, loss of profit, loss of use, loss of contracts, or for any other consequential or indirect loss whatsoever, whether the loss was foreseeable or not.
16.1. All processing of personal data shall be made in accordance with applicable data protection regulations. To perform under the Contract, Systemair may process information regarding the Purchaser’s employees and their preferences regarding individual orders of Products.
16.3. Systemair reserves the right to transfer personal data within the Systemair Group and subcontractors. The transfer to these parties is always protected by adequate security measures. The transfer takes place to maintain the business relationship with the Purchaser and improve the provision of services to the Purchaser.
17.1. The Systemair Terms and Conditions for Sales and the Contract shall be subject to the laws of Sweden excluding any conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or in connection with the Systemair Terms and Conditions for Sales and/or the Contract, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the SCC Arbitration Institute. The seat of the arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
17.2. Should any of the above provisions be or become invalid, the remaining provisions shall nevertheless remain valid. The validity of the Systemair Terms and Conditions for Sales and/or the Contract as such remains unaffected.