HARBO TECHNOLOGIES LTD
HARBO Technologies terms and conditions for the sale of Goods and Services
1. Definitions. In this document the following words shall have the
following meanings: (i) “Agreement” means these Terms and
Conditions together with the Proposal; (ii) “Customer” means the
organization or person who purchases Goods and Services from
Supplier; (iii) “Intellectual Property Rights” means all patents,
registered and unregistered designs, copyright, trademarks, knowhow and all other forms of intellectual property wherever in the
world enforceable; (iv) “Supplier” means HARBO Technologies
Ltd.
All references to the Goods and Services (“Goods” or “Goods and
Services”) are to such Goods and Services supplied pursuant to an
order issued by Customer (“Order”) in reply and compliance with
Supplier quotation, proposal or offer or agreement or other binding
arrangement delivered by Supplier to the Customer prior to
receiving the Order (“Proposal”).
2. GENERAL
2.1 The terms herein shall govern the sale of Supplier’s Goods
and Services pursuant to any and Proposal and Order. All
Orders for the purchase of Goods and Services from Supplier
shall be accepted upon and subject to this Agreement,
together with any in effect Proposal and documents
described therein. No qualification of this Agreement
whether contained in the Order or form of purchase, letters
or other forms of communication issued by Customer, shall
have any effect or shall vary any of the terms of this
Agreement except insofar as expressly consented to by
Supplier in writing.
2.2 All Orders received by Supplier from the Customer shall be
in writing. Verbal or telephone orders will not be accepted.
2.3 In the event of a conflict between any Order and this
Agreement or any Proposal, the terms of this Agreement or
Proposal shall prevail. This Agreement shall also govern the
packaging, transportation and delivery of all goods by
Supplier to the Customer.
2.4 Supplier shall use its reasonable efforts to complete the
services within estimated time frames but time shall not be
of the essence in the performance of any services nor shall it
be made of the essence by notice.
3. PRICE AND PAYMENT
3.1 The Supplier’s Proposal covers only the products and
services specified therein. Any subsequent alteration by the
Customer in the design, application, quantities or the
specification and any suspension of work due to modified
instructions, lack of instructions or incomplete drawings or
specifications, will involve adjustment of the price if any
costs are increased as a result.
3.2 If, in the course of executing any work involving the
servicing of the goods, Supplier finds any defect that, in their
opinion should be rectified without delay, Supplier will
notify the Customer accordingly and seek his approval, in
writing, to carry out such repairs. Only after receipt of such
approval, in writing, will Supplier proceed with the
necessary repairs that will be completed at the Customers’
expense. All Supplier’s documentation, marketing material
and technical instructions or manuals will be provided in
English.
3.3 Payment for Goods and Services supplied against an Order
shall be made in full, without any set-off, in the currency of
the Proposal. Payment shall be due and be quoting Supplier’s
invoice number and the Customer’s name, to the Supplier’s
Account No. within the period and other details set forth in
the Proposal. Supplier may charge interest on overdue
invoices as set in the Proposal.
3.4 Title to the goods shall not pass to the Customer subject to
Supplier receipt of payment in full.
4. TERMINATION/CANCELLATION
4.1 Any Order placed by the Customer shall not be binding upon
The Supplier until accepted and confirmed by Supplier in
writing.
4.2 Either party may terminate this Agreement forthwith by
notice in writing to the other if: (i) the other party commits a
material breach of this Agreement and, in the case of a
breach capable of being remedied, fails to remedy it within
30 calendar days of being given written notice from the other
party to do so; (ii) the other party commits a material breach
of this Agreement which cannot be remedied under any
circumstances; (iii) the other party passes a resolution for
winding up (other than for the purpose of solvent
amalgamation or reconstruction), or a court of competent
jurisdiction makes an order to that effect; (iv) the other party
ceases to carry on its business or substantially the whole of
its business; or (v) the other party is declared insolvent, or
convenes a meeting of or makes or proposes to make any
arrangement or composition with its creditors; or a
liquidator, receiver, administrative receiver, manager, trustee
or similar officer is appointed over any of its assets.
5. DELIVERY AND RISK
Supplier shall deliver the goods in accordance with Incoterms 2010
and the specific terms agreed in the Proposal. Supplier shall include
delivery dates in good faith and shall make every endeavor to
deliver within the stated time. No liability can be accepted for delay
in delivery whatever the cause. Whilst every effort will be made by
Supplier to effect dispatch and transportation in accordance with any
pre-arranged shipment dates, no guarantee as to the date of shipment
is to be implied and Supplier will not be liable for any loss or
damage occasioned by delay in shipment howsoever caused. No
failure on the part of Supplier, to make any shipment in accordance
with this Agreement or any other arrangements, or any claim by the
Customer in respect of such shipment or other arrangements shall
entitle the Customer to reject the Order. Customer shall be
responsible for obtaining and paying for all necessary import
licences, permits or other approvals.
6. CUSTOMER’S OBLIGATIONS
To enable the Supplier to perform its obligations under this
Agreement the Customer shall: (i) Co-operate with the Supplier; (ii)
provide the Supplier with any information reasonably required by
the Supplier; (iii) Obtain all necessary permissions and consents
which may be required before the commencement of manufacturing/
provision of services; (iv) Comply with such other requirements as
may be set out in the order or otherwise agreed between the parties;
and (v) where appropriate, arrange all necessary import procedures
and licences to allow for the importation of the goods into the
Customer’s country.
7. DAMAGE, SHORTAGE OR LOSS
Unless otherwise stated in the Proposal, claims for damage or loss
will only be accepted if it can be proved that such damage or loss
occurred prior to the date in which pursuant to the applicable
incoterms, the goods shall pass from the responsibility of the
Supplier.
8. WARRANTY
8.1 This warranty extends only to the Goods and Services
supplied or to be supplied by Supplier pursuant to a Proposal
and a valid Agreement.
8.2 The Goods and Services will carry 12 (twelve) months
Warranty, commencing on the date you receive the Goods and
Services (the “Warranty Period”). During the Warranty
Period, when maintained under and/or use in accordance with
HARBO’s then current recommendations set forth in
HARBO’s formal documentation and/or other written
HARBO TECHNOLOGIES LTD
HARBO Technologies terms and conditions for the sale of Goods and Services
instructions (“Documentation”), the Goods and Services will
materially correspond with HARBO’s Documentation, and will
be free from material defects in design, material and
workmanship (the “Warranty”).
8.3 The Warranty is subject to: Completion of 3 hours
comprehensive training about the use and handling of the
Goods and Services , and provision of written confirmation
issued by HARBO’s designated distributor, listed in HARBO’s
website (above and hereinafter: “Distributor”). It is Customer’s
sole responsibility to coordinate training session with a
Distributor. Customer shall notify in writing HARBO or the
Distributor from which it has purchased the Goods and
Services, of any Defect in the Goods and Services within the
Warranty Period. For the purpose of these Terms of Warranty,
“Defect” shall mean material non-compliance of the Goods and
Services to the Documentation excluding the exceptions set
below.
8.4 The Supplier’s Warranty for the Goods and Services hereunder
is limited to making good repair or replace, without charge to
the Customer, of any Defected Goods and Services if such was
reported within the Warranty Period, provided always that such
defects are notified in writing to Supplier within fourteen days
of their discovery and that the defective parts are promptly sent,
carriage paid, to Supplier’s premises.
8.5 The Customer will provide Supplier with copies of reports on
the use and performance of the Goods and Services, in
particular where such use and performance were subject to
occurrence of fault in the goods and services.
8.6 Any defective Goods and Services s shall be returned to
HARBO or its Distributor as the case may be. HARBO shall
examine the returned Goods and Services in a timely manner
and issue preliminary findings to the Customer no later than 30
(thirty) days after receipt of the Defected Good and Services at
its premises. HARBO’s sole and exclusive liability and
Customer’s sole remedy for breach of the Warranty is as set in
section 8.4 above either the repair or replacement of the Goods
and Services, free of charge to Customer, and to the extent such
options are not applicable (at HARBO’s discretion) – provide
credit for the respective Goods and Services .
8.7 HARBO’s limited Warranty does not cover, and HARBO shall
not be liable for (i) Defects reported to HARBO after
termination of the Warranty Period, (ii) Goods and Services (or
any part thereof) which has been stored, shipped, handled, used,
installed, operated and/or maintained not in accordance with the
Documentation and/or otherwise damaged due to abuse,
misuse, accident, negligence or omission of or on behalf of the
Customer (including improper storage and/or use of unsuitable
components) or attempted repair; (iii) Goods and Services
which has been altered or modified; (iv) Goods and Services
which was damaged by causes beyond HARBO’s control (v)
such Defects and faults caused by ordinary wear and tear.
8.8 In addition, due to the nature of the purpose of the Goods and
Services, the Goods and Services is to be used under unusual
(and in some cases extreme) environmental conditions, and
customer’s ability to use the Goods and Services , including,
without limitation, the Goods and Services ‘s efficiency when
being used, may be influenced by and/or subject to various
parameters, which cannot be foreseen and/or otherwise
anticipated in advance. To the maximum extent permitted by
law, HARBO makes no representation, warranty, or guaranty as
to the reliability, quality, suitability, or completeness of the
Goods and Services. HARBO does not represent or warrant that
(a) the Goods and Services or its use will be uninterrupted or
fault-free or free from Defects, or that (b) the Goods and
Services will meet the customer requirements or expectations or
needs, or that (c) the Goods and Services will completely block
and/or contain an area which has been contaminated.
8.9 Customer assumes all risks resulting from the use of the Goods
and Services, whether used singularly or combinations with
other substances.
8.10 THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY GRANTED IN THIS WARRANTY ARE THE
ONLY REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, MADE BY HARBO, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, HARBO DISCLAIMS ALL OTHER WARRANTIES,
LIABILITIES OR GUARANTEES, EXPRESS OR IMPLIED
(INCLUDING BUT NOT LIMITED TO ANY NON
INFRINGEMENT WARRANTIES OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE), OF ANY NATURE
WHATSOEVER, WHETHER ARISING IN CONTRACT,
TORT, WRONGFUL ACT, NEGLIGENCE OF ANY
DEGREE, STRICT LIABILITY OR OTHERWISE, WITH
RESPECT TO THE GOODS AND SERVICES , SERVICES
OR ANY PARTS THEREOF AND/OR WITH RESPECT TO
ANY NON-CONFORMANCE OR DEFECT IN THE GOODS
AND SERVICES , SERVICES AND/OR PARTS THEREOF.
8.11 The Supplier’s warranties contained in this section 8 shall
constitute Supplier’s sole warranties including for latent and
other defects and is in full exclusion of any warranty or liability
whatsoever implied by common law, statute or otherwise as to
quality of the goods, their fitness for any particular purpose,
their merchantability or otherwise.
9. WORK ON CUSTOMER PREMISES
Where the Supplier is to carry out work or operations upon the
Customer’s premises or other premises or sites at the direction of the
Customer, then the Customer must ensure that: (i) such premises and
any machinery involved and all of the arrangements affecting the
work or operations are ready by the time the Supplier is scheduled to
enter upon such premises or site to commence such work or
operations; and (ii) there will be no delay to the works or operations
caused directly or indirectly by such premises or such site or
machinery or arrangements or the state and condition thereof for
which the Supplier is not responsible.
10. CONFIDENTIALITY And DATA PROTECTION
10.1 Any information which the Supplier discloses relating to the
goods, which is not in the public domain at the time of
disclosure, shall be confidential and shall not be disclosed to
any third party. The Customer will keep strictly confidential;
all information, models and drawings made available to the
Customer by The Supplier and shall not use the same for any
purpose detrimental to the interests of The Supplier. The
Customer will not, without the written consent of The
Supplier, make or have made or assist any third party to
make anything similar to the goods. In any event nothing in
any order will confer on the Customer any propriety right or
interest in any name, trademark or design used by The
Supplier in connection with the goods.
10.2 The Customer acknowledges and agrees that the details of the
customer’s name, address and payment record may be
submitted to a credit reference agency, and personal data will
be processed by and on behalf of the supplier in connection
with the provision of Products and Services under the
Agreement.
11. LIMITATION OF LIABILITY
Except in respect of death or personal injury due to
negligence or any willful misconduct for which no limit
applies, the entire liability of the Supplier to the Customer in
respect of any claim whatsoever or breach of this
Agreement, whether or not arising out of negligence,
including any liability for any breach by Supplier or its
agents of this agreement, or any other cause whatsoever,
whether based on contract, tort or any other theory of
HARBO TECHNOLOGIES LTD
HARBO Technologies terms and conditions for the sale of Goods and Services
liability, shall be limited to the price paid by the Customer to
which the claim relates. In no event shall the Supplier be
liable to the Customer or any other third party for any loss of
business, loss of opportunity or loss of profits or for any
other indirect or consequential loss or damage whatsoever.
This limitation of liability shall apply even where such a loss
was reasonably foreseeable or the Supplier had been made
aware of the possibility of the Customer incurring such a
loss. Nothing in this Agreement shall exclude or limit the
Supplier’s liability for death or personal injury resulting from
the Supplier’s negligence or that of its employees, agents or
subcontractors.
12. INTELLECTUAL PROPERTY RIGHTS:
12.1 All Intellectual Property Rights vested or related to the
Goods and Services or any amendments, changes,
alterations, enhancements, upgrades and updates thereto
shall remain exclusively owned by and vested with Supplier.
12.2 All Intellectual Property Rights produced from or arising as a
result of the performance of this Agreement shall, so far as
not already vested, become the absolute property of the
Supplier, and the Customer shall do all that is reasonably
necessary to ensure that such rights vest in the Supplier by
the execution of appropriate instruments or the making of
agreements with third parties.
13. INDEPENDENT CONTRACTORS
Supplier and the Customer are contractors independent of each
other, and neither has the authority to bind the other to any third
party or act in any way as the representative of the other, unless
otherwise expressly agreed to in writing by both parties. The
Supplier may, in addition to its own employees, engage subcontractors to provide all or part of the services being provided to
the Customer and such engagement shall not relieve the Supplier of
its obligations under this Agreement.
14. MISCELLANEOUS
14.1 ASSIGNMENT. The Customer shall not be entitled to
assign its rights or obligations or delegate its duties under
this Agreement without the prior written consent of the
Supplier.
14.2 SEVERABILITY: If any provision of this Agreement is
held invalid, illegal or unenforceable for any reason by any
Court of competent jurisdiction such provision shall be
severed and the remainder of the provisions herein shall
continue in full force and effect as if this Agreement had
been agreed with the invalid illegal or unenforceable
provision eliminated.
14.3 WAIVER: The failure by either party to enforce at any time
or for any period any one or more of the Terms and
Conditions herein shall not be a waiver of them or of the
right at any time subsequently to enforce all Terms and
Conditions of this Agreement.
14.4 NOTICES: Any notice to be given by either party to the
other may be served by email, fax, personal service or by
post to the address of the other party given in the quotation
or order or such other address as such party may from time
to time have communicated to the other in writing, and if
sent by email shall unless the contrary is proved be deemed
to be received on the day it was sent, if sent by fax shall be
deemed to be served on receipt of an error free transmission
report, if given by letter shall be deemed to have been served
at the time at which the letter was delivered personally or if
sent by post shall be deemed to have been delivered in the
ordinary course of post.
14.5 ENTIRE AGREEMENT. This Agreement contains the
entire agreement between the parties relating to the subject
matter and supersedes any previous agreements,
arrangements, undertakings or proposals, oral or written.
Unless expressly provided elsewhere in this Agreement, this
Agreement may be varied only by a document signed by
both parties.
14.6 THIRD PARTIES. Nothing in this Agreement is intended to,
nor shall it confer any rights on a third party.
14.7 FORCE MAJEURE. Neither party shall be liable for any
delay or failure to perform any of its obligations if the delay
or failure results from events or circumstances outside its
reasonable control, including but not limited to acts of God,
strikes, lock outs, accidents, war, fire, the act or omission of
government, highway authorities or any telecommunications
carrier, operator or administration or other competent
authority, or the delay or failure in manufacture, production,
or supply by third parties of equipment or services, and the
party shall be entitled to a reasonable extension of its
obligations after notifying the other party of the nature and
extent of such events.
14.8 BREACH. If the Customer fails to make any payment
hereunder when it becomes due, or goes into liquidation, or
becomes party to a merger or consolidation as a result of
which its rights under this order pass to any other person,
firm, corporation or authority, or is deprived of or disposes
of its business or any part thereof, or commits any breach of
the conditions of this order, The Supplier may without
prejudice to its other rights and remedies cancel the order
forthwith.
14.9 LAW AND JURISDICTION. The construction, validity and
performance of this Agreement and any Order shall be
governed by Israeli law. This Agreement shall become valid
when executed and accepted by Customer. This Agreement
shall be construed in accordance with the laws of the State of
Israel, without an application of the principles of conflicts of
laws. Anything in this Agreement to the contrary
notwithstanding, the Contractor shall conduct its business in
a lawful manner and faithfully comply with applicable laws
or regulations of the state, city or other political subdivision
in which the Contractor is located. Any suit, action or
proceeding with respect to this Agreement shall be brought
exclusively in the competent courts of the State of
Israel. The parties hereto hereby accept the exclusive
jurisdiction and venue of the State of Israel courts for the
purpose of any such suit, action or proceeding. The parties
hereto hereby irrevocably waive, to the fullest extent
permitted by law, any objection that any of them may now or
hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or
Order or any judgment entered by any court in respect
thereof brought in the State of Israel and hereby further
irrevocably waive any claim that any suit, action or
proceeding brought in in the State of Israel has been brought
in an inconvenient form.