Etusi­vu Toi­mi­tuseh­dot

Ge­ne­ral con­di­tions for the supply of mec­ha­nical, elect­rical and elect­ro­nic pro­ducts

Brus­sels, Oc­to­ber 2022

Preamble

1. These Ge­ne­ral Con­di­tions shall apply when the par­ties agree the­re­to. Any mo­di­fica­tions of or de­via­tions from them must be agreed In Writing.

De­fi­ni­tions

2. In these Ge­ne­ral Con­di­tions the following terms shall have the mea­nings he­reun­der as­sig­ned to them:

• « Cont­ract » : the agree­ment In Writing between the par­ties concer­ning supply of the Pro­duct and all ap­pen­dices, inclu­ding agreed amend­ments and ad­di­tions In Writing to the said docu­ments;
• « Gross Negli­gence » : a de­li­be­ra­te or reckless fai­lu­re to take such care as is ob­vious­ly requi­red in the circums­tances to avoid se­rious con­sequences for theot­her party;
• « In Writing » : com­mu­nica­tion by docu­ment sig­ned by both par­ties or by let­ter, elect­ro­nic mail, fax and by such other means as are agreed by the par­ties;
• « the Pro­duct » : the ob­ject(s) to be supplied under the Cont­ract, inclu­ding software and docu­men­ta­tion;
• « Cont­ract Price » : the agreed price, which shall be eit­her a fixed price or, in case the par­ties have speci­fical­ly agreed on a price re­vi­sion clause, the re­vi­sed price.

Pro­duct in­for­ma­tion/in­struc­tions

3. All in­for­ma­tion and data con­tai­ned in ge­ne­ral pro­duct docu­men­ta­tion and price lists, re­gard­less of form, shall be bin­ding only to the extent that they are by re­fe­rence In Writing expressly inclu­ded in the Cont­ract.
4. The Supplier shall, not later than at the date of de­li­ve­ry, pro­vi­de free of char­ge in­for­ma­tion and drawings which are neces­sa­ry to per­mit the Purc­ha­ser to ins­tall, com­mis­sion, ope­ra­te and main­tain the Pro­duct. Such in­for­ma­tion and drawings shall be supplied as one paper copy of each and also elect­ro­nical­ly. The Supplier shall not be obli­ged to pro­vi­de ma­nu­fac­tu­ring drawings for the Pro­duct or for spare parts.

In­tel­lec­tual pro­per­ty and con­fi­den­tia­li­ty

5. All in­tel­lec­tual pro­per­ty rights in the Pro­duct, inclu­ding in any em­bed­ded software, and in any tech­nical in­for­ma­tion re­la­ting to the Pro­duct, shall rest with the Supplier or, in the ap­propria­te case, with a third party which has licen­sed the
   Supplier to sublicen­se these rights. Sub­ject to any li­mi­ta­tions that may have been agreed between the third party and the Supplier, the Purc­ha­ser shall acqui­re a nonexclusive, per­pe­tual and trans­fe­rable right to use these in­tel­lec­tual pro­per­ty rights, but li­mi­ted to the extent requi­red by the pur­po­se of the Cont­ract. The Supplier shall not be obli­ged to pro­vi­de the Purc­ha­ser with the source code or with up­da­tes for any em­bed­ded software.
   This clause shall also apply when the Pro­duct and/or software has been speci­fical­ly de­ve­lo­ped for the Purc­ha­ser, un­less otherwise agreed In Writing.
6. 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.

Accep­tance tests

7. Accep­tance tests pro­vi­ded for in the Cont­ract shall, un­less otherwise agreed, be car­ried out at the place of ma­nu­fac­tu­re du­ring nor­mal working hours.
   If the Cont­ract does not speci­fy the tech­nical requi­re­ments, the tests shall be car­ried out in accor­dance with ge­ne­ral prac­tice in the ap­propria­te branch of in­dustry concer­ned in the count­ry of ma­nu­fac­tu­re.
8. The Supplier shall no­ti­fy the Purc­ha­ser In Writing of the accep­tance tests in suf­ficient time to per­mit the Purc­ha­ser to be repre­sen­ted at the tests. If the Purc­ha­ser is not repre­sen­ted, the test re­port shall be sent to the Purc­ha­ser and shall be accep­ted as accu­ra­te.
9. If the accep­tance tests show the Pro­duct not to be in accor­dance with the Cont­ract, the Supplier shall without delay re­me­dy any de­ficiencies in order to en­su­re that the Pro­duct complies with the Cont­ract. New tests shall then be car­ried out at the Purc­ha­ser’s request, un­less the de­ficiency was in­sig­ni­ficant.
10. The Supplier shall bear all costs for accep­tance tests car­ried out at the place of ma­nu­fac­tu­re. The Purc­ha­ser shall however bear all tra­vel­ling and li­ving expenses for his repre­sen­ta­ti­ves in con­nec­tion with such tests.
    

De­li­ve­ry. Pas­sing of risk

11. Any agreed trade term shall be con­strued in accor­dance with the INCO­TERMS® in force at the for­ma­tion of the Cont­ract.
    If no trade term has been speci­fical­ly agreed, the de­li­ve­ry shall be Free Car­rier (FCA) at the place of ma­nu­fac­tu­re of the Pro­duct.
    If, in the case of de­li­ve­ry Free Car­rier, the Supplier, at the request of the Purc­ha­ser, un­der­ta­kes to send the Pro­duct to its des­ti­na­tion, the risk will ne­vert­he­less pass to the Purc­ha­ser as soon as the Pro­duct is han­ded over to the first car­rier.
    Par­tial de­li­ve­ry shall not be per­mit­ted, un­less otherwise agreed In Writing.

Time for de­li­ve­ry. Delay

12. If the par­ties, ins­tead of speci­fying the date for de­li­ve­ry, have speci­fied a pe­riod of time within which de­li­ve­ry shall take place, such pe­riod shall start to run as soon as the Cont­ract is en­te­red into and all agreed precon­di­tions to be met by the Purc­ha­ser have been ful­fil­led, such as of­ficial for­ma­li­ties, pay­ments due at the for­ma­tion of the Cont­ract and secu­ri­ties.
13. If the Supplier an­tici­pa­tes that he will not be able to de­li­ver the Pro­duct at the time for de­li­ve­ry, he shall forthwith no­ti­fy the Purc­ha­ser the­reof In Writing, sta­ting the rea­son and, if pos­sible, the time when de­li­ve­ry can be expected. If the Supplier fails to give such no­tice, the Purc­ha­ser shall be en­tit­led to com­pen­sa­tion for any ad­di­tio­nal costs which he incurs and which he could have avoi­ded had he recei­ved such no­tice.
14. If delay in de­li­ve­ry is caused by any of the circums­tances men­tio­ned in Clause 46, by an act or omis­sion on the part of the Purc­ha­ser, inclu­ding sus­pen­sion under Clauses 22 and 49, or any other circums­tances att­ri­bu­table to the Purc­ha­ser, the Supplier shall be en­tit­led to extend the time for de­li­ve­ry by a pe­riod which is neces­sa­ry ha­ving re­gard to all the circums­tances of the case. This pro­vi­sion shall apply re­gard­less of whether the rea­son for the delay occurs be­fo­re or after the agreed time for de­li­ve­ry.
15. If the Pro­duct is not de­li­ve­red at the time for de­li­ve­ry, the Purc­ha­ser shall be en­tit­led to liqui­da­ted da­ma­ges from the date on which de­li­ve­ry should have taken place. The liqui­da­ted da­ma­ges shall be pay­able at a rate of 0.5 per cent of the Cont­ract Price for each com­menced week of delay. The liqui­da­ted da­ma­ges shall not exceed 7.5 per cent of the Cont­ract Price.
    If only part of the Pro­duct is de­layed, the liqui­da­ted da­ma­ges shall be calcu­la­ted on that part of the Cont­ract Price which is att­ri­bu­table to such part of the Pro­duct as can­not in con­sequence of the delay be used as in­ten­ded by the par­ties.
    The liqui­da­ted da­ma­ges shall beco­me due at the Purc­ha­ser’s de­mand In Writing but not be­fo­re de­li­ve­ry has been comple­ted or the Cont­ract is ter­mi­na­ted under Clause 16.
    The Purc­ha­ser shall for­feit his right to liqui­da­ted da­ma­ges if he has not lod­ged a claim In Writing for such da­ma­ges within six months after the time when de­li­ve­ry should have taken place.
16. If the delay in de­li­ve­ry is such that the Purc­ha­ser is en­tit­led to maximum liqui­da­ted da­ma­ges under Clause 15 and if the Pro­duct is still not de­li­ve­red, the Purc­ha­ser may In Writing de­mand de­li­ve­ry within a final rea­so­nable pe­riod which shall not be less than one week. If the Supplier does not de­li­ver within such final pe­riod and this is not due to any circums­tances which are att­ri­bu­table to the Purc­ha­ser, then the Purc­ha­ser may by no­tice In Writing to the Supplier ter­mi­na­te the Cont­ract in res­pect of such part of the Pro­duct as can­not in con­sequence of the Supplier’s fai­lu­re to de­li­ver be used as in­ten­ded by the par­ties.
    If the Purc­ha­ser ter­mi­na­tes the Cont­ract he shall be en­tit­led to com­pen­sa­tion for the loss he suf­fers as a re­sult of the Supplier’s delay, inclu­ding any con­sequen­tial and in­di­rect loss. The total com­pen­sa­tion, inclu­ding the liqui­da­ted da­ma­ges which are pay­able under Clause 15, shall not exceed 15 per cent of that part of the Cont­ract Price which is att­ri­bu­table to the part of the Pro­duct in res­pect of which the Cont­ract is ter­mi­na­ted.
    The Purc­ha­ser shall also have the right to ter­mi­na­te the Cont­ract by no­tice In Writing to the Supplier, if it is clear from the circums­tances that there will occur a delay in de­li­ve­ry which, under Clause 15, would en­tit­le the Purc­ha­ser to maximum liqui­da­ted da­ma­ges. In case of ter­mi­na­tion for this rea­son, the Purc­ha­ser shall be en­tit­led to maximum liqui­da­ted da­ma­ges and com­pen­sa­tion under the third pa­ra­graph of this clause.

17. Liqui­da­ted da­ma­ges under Clause 15 and ter­mi­na­tion of the Cont­ract with li­mi­ted com­pen­sa­tion under Clause 16 shall be the only re­me­dies avai­lable to the Purc­ha­ser in case of delay on the part of the Supplier. All other claims against the Supplier based on such delay shall be excluded, except where the Supplier has been guil­ty of Gross Negli­gence.
18. If the Purc­ha­ser an­tici­pa­tes that he will be unable to accept de­li­ve­ry of the Pro­duct at the time for de­li­ve­ry, he shall forthwith no­ti­fy the Supplier In Writing the­reof, sta­ting the rea­son and, if pos­sible, the time when he will be able to accept de­li­ve­ry. If the Purc­ha­ser fails to accept de­li­ve­ry at the time for de­li­ve­ry for a rea­son which is not att­ri­bu­table to the Supplier, he shall ne­vert­he­less pay any part of the Cont­ract Price which beco­mes due at the time for de­li­ve­ry, as if de­li­ve­ry had taken place at the time for de­li­ve­ry. The Supplier shall ar­ran­ge for sto­ra­ge of the Pro­duct at the risk and expense of the Purc­ha­ser. The Supplier shall also, if the Purc­ha­ser so requi­res, in­su­re the Pro­duct at the Purc­ha­ser’s expense.
19. Un­less the Purc­ha­ser’s fai­lu­re to accept de­li­ve­ry is due to any of the circums­tances men­tio­ned in Clause 46, the Supplier may by no­tice In Writing requi­re the Purc­ha­ser to accept de­li­ve­ry within a final rea­so­nable pe­riod. If, for a rea­son which is not att­ri­bu­table to the Supplier and not the re­sult of any of the circums­tances men­tio­ned in Clause 46, the Purc­ha­ser fails to accept de­li­ve­ry within such pe­riod, the Supplier may by no­tice In Writing ter­mi­na­te the Cont­ract in whole or in part. The Supplier shall then be en­tit­led to com­pen­sa­tion for the loss he suf­fers by rea­son of the Purc­ha­ser’s de­fault, inclu­ding any con­sequen­tial and in­di­rect loss. The com­pen­sa­tion shall not exceed that part of the Cont­ract Price which is att­ri­bu­table to that part of the Pro­duct in res­pect of which the Cont­ract is ter­mi­na­ted.

Pay­ment

20. Pay­ment shall be made within thir­ty days after the date of
    in­voice. Un­less otherwise agreed, the Cont­ract Price shall be in­voiced with one third at the for­ma­tion of the Cont­ract and the re­mai­ning part when the Pro­duct is de­li­ve­red.
21. Whatever the means of pay­ment used, pay­ment shall not be dee­med to have been ef­fec­ted be­fo­re the Supplier’s account has been ir­re­vocably cre­di­ted for the amount due.
22. If the Purc­ha­ser fails to pay by the sti­pu­la­ted date, the Supplier shall be en­tit­led to in­te­rest from the day on which pay­ment was due and to com­pen­sa­tion for reco­ve­ry costs. The rate of in­te­rest shall be as agreed between the par­ties or otherwise 8 percen­ta­ge points above the in­te­rest rate of the Eu­ro­pean Cent­ral Bank for the main re­fi­nancing ope­ra­tions (MRO). The com­pen­sa­tion for reco­ve­ry costs shall be 1 per cent of the amount for which in­te­rest for late pay­ment beco­mes due.
    
    In case of late pay­ment or in case the Purc­ha­ser fails to give an agreed secu­ri­ty by the sti­pu­la­ted date the Supplier may, after ha­ving no­ti­fied the Purc­ha­ser In Writing, sus­pend his per­for­mance of the Cont­ract until he recei­ves pay­ment or, where ap­propria­te, until the Purc­ha­ser gives the agreed secu­ri­ty.
    
    If the Purc­ha­ser has not paid the amount due within three months the Supplier shall be en­tit­led to ter­mi­na­te the Cont­ract by no­tice In Writing to the Purc­ha­ser and, in ad­di­tion to the in­te­rest and com­pen­sa­tion for reco­ve­ry costs accor­ding to this clause, to claim com­pen­sa­tion for the costs and loss he incurs, inclu­ding in­di­rect and con­sequen­tial loss.

Re­ten­tion of title

23. The Pro­duct shall re­main the pro­per­ty of the Supplier until paid for in full to the extent that such re­ten­tion of title is valid under the re­le­vant law. The Purc­ha­ser shall at the request of the Supplier as­sist him in ta­king any mea­su­res neces­sa­ry to pro­tect the Supplier’s title to the Pro­duct. The re­ten­tion of title shall not af­fect the pas­sing of risk under Clause 11.

Lia­bi­li­ty for de­fects

24. The Pro­duct shall be in con­for­mi­ty with the Cont­ract. Pur­suant to the pro­vi­sions of this clause and Clauses 25-44, the Supplier shall re­me­dy any de­fect in or noncon­for­mi­ty of the Pro­duct (he­rei­naf­ter ter­med de­fect) re­sul­ting from faul­ty de­sign, ma­te­rials or workmanship.
25. The Supplier shall not be liable for de­fects ari­sing out of a de­sign, ma­te­rials or pro­duc­tion met­hods pro­vi­ded, sti­pu­la­ted or speci­fied by the Purc­ha­ser.
26. The Supplier shall only be liable for de­fects which ap­pear under the con­di­tions of ope­ra­tion pro­vi­ded for in the Cont­ract and under pro­per use of the Pro­duct.
27. The Supplier shall not be liable for de­fects caused by circums­tances which arise after the risk has pas­sed to the Purc­ha­ser, e.g. de­fects due to faul­ty or incor­rect ins­tal­la­tion, main­te­nance or re­pair, or to any al­te­ra­tion, car­ried out by the Purc­ha­ser or by a third party on be­half of the Purc­ha­ser. The Supplier shall neit­her be liable for nor­mal wear and tear nor for de­te­rio­ra­tion.
28. The Supplier’s lia­bi­li­ty shall be li­mi­ted to de­fects which ap­pear within a pe­riod of one year from de­li­ve­ry. If the use of the Pro­duct exceeds that which is agreed, this pe­riod shall be re­duced pro­por­tio­na­te­ly.
29. When a de­fect in a part of the Pro­duct has been re­me­died, the Supplier shall be liable for de­fects in the re­pai­red part or in the part in replace­ment under the same terms and con­di­tions as those applicable to the ori­gi­nal Pro­duct for a pe­riod of one year. For the re­mai­ning parts of the Pro­duct, the pe­riod men­tio­ned in Clause 28 shall be extended only by a pe­riod equal to the pe­riod du­ring which and to the extent that the Pro­duct could not be used as a re­sult of the de­fect. The Supplier shall not be liable for de­fects in any part of the Pro­duct for more than one year from the end of the lia­bi­li­ty pe­riod re­fer­red to in Clause 28 or from the end of any other lia­bi­li­ty pe­riod agreed upon by the par­ties.
30. The Purc­ha­ser shall without undue delay no­ti­fy the Supplier In Writing of any de­fect which ap­pears. The no­tice shall con­tain a desc­rip­tion of the de­fect. Such no­tice shall under no circums­tances be given later than two weeks after the expiry of the pe­riod given in Clause 28 or the extended pe­riod(s) under Clause 29, where applicable. If the Purc­ha­ser fails to no­ti­fy the Supplier In Writing of a de­fect within the time li­mits set forth in the first pa­ra­graph of this clause, he shall lose his right to have the de­fect re­me­died and any other rights in res­pect of the de­fect. Where the de­fect is such that it may cause da­ma­ge, the Purc­ha­ser shall im­me­dia­te­ly no­ti­fy the Supplier In Writing. The Purc­ha­ser shall bear the risk of da­ma­ge to the Pro­duct re­sul­ting from his fai­lu­re so to no­ti­fy. The Purc­ha­ser shall take rea­so­nable mea­su­res to mi­ni­mi­se da­ma­ge and shall in that res­pect comply with in­struc­tions of the Supplier.
31. On receipt of the no­tice under Clause 30, the Supplier shall at his own cost re­me­dy the de­fect without undue delay, as sti­pu­la­ted in Clauses 24-44. The time for re­me­dial work shall be cho­sen in order not to in­ter­fe­re un­neces­sa­ri­ly with the Purc­ha­ser’s ac­ti­vi­ties. Re­me­dial work shall be car­ried out at the place where the Pro­duct is loca­ted un­less the Supplier deems it more ap­propria­te that the Pro­duct is sent to him or a des­ti­na­tion speci­fied by him. If the de­fect can be re­me­died by replace­ment or re­pair of a de­fec­ti­ve part and if dis­mant­ling and re-​installation of the part do not requi­re special knowledge, the Supplier may de­mand that the de­fec­ti­ve part is sent to him or a des­ti­na­tion speci­fied by him. In such case the Supplier shall have ful­fil­led his obli­ga­tions in res­pect of the de­fect when he de­li­vers a duly re­pai­red part or a part in replace­ment to the Purc­ha­ser.
32. The Purc­ha­ser shall at his own expense pro­vi­de access to the Pro­duct and ar­ran­ge for any in­ter­ven­tion in equip­ment other than the Pro­duct, to the extent that this is neces­sa­ry to re­me­dy the de­fect.
33. Un­less otherwise agreed, neces­sa­ry trans­port of the Pro­duct or parts the­reof to and from the Supplier in con­nec­tion with the re­me­dying of de­fects for which the Supplier is liable shall be at the risk and expense of the Supplier. The Purc­ha­ser shall follow the Supplier’s in­struc­tions re­gar­ding such trans­port.
34. Un­less otherwise agreed, the Purc­ha­ser shall bear any ad­di­tio­nal costs which the Supplier incurs for re­me­dying the de­fect caused by the Pro­duct being loca­ted in a place other than the place speci­fied in the Cont­ract for put­ting the Pro­duct into ser­vice, or if not speci­fied, the place of de­li­ve­ry.
35. De­fec­ti­ve parts which have been replaced shall be made avai­lable to the Supplier and shall be his pro­per­ty.
36. If the Purc­ha­ser has given such no­tice as men­tio­ned in Clause 30 and no de­fect is found for which the Supplier is liable, the Supplier shall be en­tit­led to com­pen­sa­tion for the costs he incurs as a re­sult of the no­tice.
37. If the Supplier does not ful­fil his obli­ga­tions under Clause 31 or 43, the Purc­ha­ser may by no­tice In Writing fix a final rea­so­nable pe­riod for comple­tion of the Supplier’s obli­ga­tions, which shall not be less than one week. If the Supplier fails to ful­fil his obli­ga­tions within such final pe­riod, the Purc­ha­ser may him­self un­der­ta­ke or employ a third party to un­der­ta­ke neces­sa­ry re­me­dial work at the risk and expense of the Supplier, pro­vi­ded the Purc­ha­ser or third party does so in a pro­fes­sio­nal man­ner. Where success­ful re­me­dial work has been un­der­ta­ken by the Purc­ha­ser or a third party, reim­bur­se­ment by the Supplier of rea­so­nable costs incur­red by the Purc­ha­ser shall be in full sett­le­ment of the Supplier’s lia­bi­li­ties for the said de­fect.
38. Where the de­fect has not been success­ful­ly re­me­died, as sti­pu­la­ted under Clause 37,
    a) the Purc­ha­ser shall be en­tit­led to a re­duc­tion of the Cont­ract Price in pro­por­tion to the re­duced value of the Pro­duct, pro­vi­ded that under no circums­tances shall such re­duc­tion exceed 15 per cent of the Cont­ract Price, or Licen­sed for elect­ro­nic use by Sa­ja­kor­pi Oy; Licence N° 01/25/24 Or­ga­lim 5
    b) where the de­fect is so subs­tan­tial as to sig­ni­ficant­ly depri­ve the Purc­ha­ser of the be­ne­fit of the Cont­ract as re­gards the Pro­duct or a subs­tan­tial part of it, the Purc­ha­ser may ter­mi­na­te the Cont­ract by no­tice In Writing to the Supplier in res­pect of such part of the Pro­duct as can­not in con­sequence of the de­fect be used as in­ten­ded by the par­ties. The Purc­ha­ser shall then be en­tit­led to com­pen­sa­tion for any loss, inclu­ding any con­sequen­tial and in­di­rect loss, up to a maximum of 15 per cent of that part of the Cont­ract Price which is att­ri­bu­table to the part of the Pro­duct in res­pect of which the Cont­ract is ter­mi­na­ted.
39. Save as sti­pu­la­ted in Clauses 24-38, the Supplier shall not be liable for de­fects. In con­sequence, the Supplier shall not be liable for any other loss the de­fect may cause, inclu­ding loss of pro­duc­tion, loss of pro­fit and other in­di­rect loss. This li­mi­ta­tion of the Supplier’s lia­bi­li­ty shall not apply if he has been guil­ty of Gross Negli­gence.

Lia­bi­li­ty for infrin­ge­ment of in­tel­lec­tual pro­per­ty rights

40. Un­less otherwise agreed, the Supplier shall, in accor­dance with this clause and Clauses 41 – 44 be liable towards the Purc­ha­ser for the Pro­duct infrin­ging pa­tents, co­py­rights or any other in­tel­lec­tual pro­per­ty rights of a third party in the Purc­ha­ser’s count­ry. The Supplier 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 or a sett­le­ment ap­pro­ved by the Supplier. The Supplier shall however not be liable for the Purc­ha­ser’s loss of pro­duc­tion, loss of pro­fit, loss of use and loss of cont­racts, un­less the Supplier has been guil­ty of Gross Negli­gence.
41. The Supplier shall have no lia­bi­li­ty for infrin­ge­ment ofin­tel­lec­tual pro­per­ty rights ari­sing out of:
    − the Pro­duct being used elsewhere than in the­Purc­ha­ser’s count­ry;
    − the Pro­duct being used otherwise than agreed or in a way the Supplier could not have fo­re­seen;
    − the Pro­duct being used to­get­her with equip­ment or software not supplied by the Supplier, or
    − a de­sign or con­struc­tion sti­pu­la­ted or speci­fied by the Purc­ha­ser.
42. The Supplier shall only be liable if the Purc­ha­ser no­ti­fies the Supplier In Writing without delay of any claim as re­fer­red to in Clause 40 which he recei­ves and allows the Supplier to deci­de how the claim shall be dealt with. De­fence against claims re­fer­red to in Clause 40 shall be for the Supplier’s account. The Supplier shall com­pen­sa­te the Purc­ha­ser for any amounts the lat­ter is obli­ged to pay under a final award or a sett­le­ment ap­pro­ved by the Supplier.
43. Infrin­ge­ment of in­tel­lec­tual pro­per­ty rights shall, at the Supplier’s disc­re­tion, be re­me­died by:
    − 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.
44. If the Supplier fails to re­me­dy the infrin­ge­ment in accor­dance with Clause 43 without undue delay, Clauses 37, 38 and 39 shall apply

Al­loca­tion of lia­bi­li­ty for da­ma­ge caused by the pro­duct

45. The Supplier shall not be liable for any da­ma­ge to pro­per­ty caused by the Pro­duct after it has been de­li­ve­red and whilst it is in the pos­ses­sion of the Purc­ha­ser. Nor shall the Supplier be liable for any da­ma­ge to pro­ducts ma­nu­fac­tu­red by the Purc­ha­ser or to pro­ducts of which the Purc­ha­ser’s pro­ducts form a part.
    If the Supplier incurs lia­bi­li­ty towards any third party for such da­ma­ge to pro­per­ty as desc­ri­bed in the prece­ding pa­ra­graph, the Purc­ha­ser shall in­dem­ni­fy, de­fend and hold the Supplier harm­less.
    If a claim for da­ma­ge as desc­ri­bed in this clause is lod­ged by a third party against one of the par­ties, the lat­ter party shall forthwith in­form the other party the­reof In Writing.
    The Supplier 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 the Supplier and the Purc­ha­ser shall however be sett­led in accor­dance with Clause 51.
    The li­mi­ta­tion of the Supplier’s lia­bi­li­ty in the first pa­ra­graph of this clause shall not apply where the Supplier has been guil­ty of Gross Negli­gence.

Force ma­jeu­re

46. Eit­her party shall be en­tit­led to sus­pend per­for­mance of his 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. 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 be fo­re­seen at the time of the for­ma­tion of the Cont­ract.
47. 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 he incurs and which he could have avoi­ded had he recei­ved such no­tice.
    If force ma­jeu­re pre­vents the Purc­ha­ser from ful­fil­ling his obli­ga­tions, he shall com­pen­sa­te the Supplier for costs which the Supplier incurs in sto­ring, secu­ring and pro­tec­ting the Pro­duct and avoi­ding un­rea­so­nable in­ter­fe­rence with his other ac­ti­vi­ties.
48. Re­gard­less of what might otherwise follow from these Ge­ne­ral Con­di­tions, eit­her party shall be en­tit­led to ter­mi­na­te the Cont­ract by no­tice In Writing to the other party if per­for­mance of the Cont­ract is sus­pen­ded under Clause 46 for more than six months.

An­tici­pa­ted non-​performance

49. Each party shall be en­tit­led to sus­pend the per­for­mance of his obli­ga­tions under the Cont­ract, where it is clear from the circums­tances that the other party is not going to per­form his obli­ga­tions. A party sus­pen­ding his per­for­mance of the Cont­ract shall forthwith no­ti­fy the other party the­reof In Writing.

Con­sequen­tial los­ses

50. Save as otherwise sta­ted in these Ge­ne­ral Con­di­tions or in case of Gross Negli­gence there shall be no lia­bi­li­ty for eit­her party towards the other party for loss of pro­duc­tion, loss of pro­fit, loss of use, loss of cont­racts and for any other con­sequen­tial or in­di­rect loss whatsoever, whether the loss was fo­re­see­able or not.

Dis­pu­tes and applicable law

51. All dis­pu­tes ari­sing out of or in con­nec­tion with the Cont­ract shall be fi­nal­ly sett­led under the Rules of Ar­bit­ra­tion of the In­ter­na­tio­nal Cham­ber of Com­merce by one or more ar­bit­ra­tors ap­poin­ted in accor­dance with the said Rules.
52. The Cont­ract shall be go­ver­ned by the subs­tan­ti­ve law of the Supplier’s count­ry.

Appendix at­tac­hed to the Or­ga­lim Ge­ne­ral Con­di­tions S 2022 re­gar­ding the applica­tion of Ger­man law

Oc­to­ber 2022

Where the Cont­ract is go­ver­ned by Ger­man Law (cf. Clause 52 of the Or­ga­lim Con­di­tions S 2022), the pre­sent amend­ment shall apply joint­ly with the Or­ga­lim Con­di­tions to pay due re­gard to the pro­vi­sions of the Ger­man Civil Code BGB concer­ning stan­dard busi­ness con­di­tions.

Furt­her­mo­re, it should be noted that the Or­ga­lim Con­di­tions S 2022 (cf. Clause 52) may lead to the applica­tion of the UN Con­ven­tion on Cont­racts for the In­ter­na­tio­nal Sale of Goods (CSIG). If this is not the in­ten­tion of the Par­ties, a sti­pu­la­tion to the cont­ra­ry will have to be expressly men­tio­ned and agreed upon.

re­gar­ding Clause 8 second sen­tence (to be replaced by the following):
“If the Purc­ha­ser is not repre­sen­ted th­rough his own fault, the test re­port shall be sent to the Purc­ha­ser and shall be accep­ted as
accu­ra­te.”

re­gar­ding Clause 15, para 5:
is de­le­ted

re­gar­ding Clause 17 second sen­tence (to be replaced by the following):
“All other claims against the Supplier based on such delay shall be excluded, except where the Supplier has been guil­ty of a negli­gent
breach of a fun­da­men­tal con­di­tion of the cont­ract (“wesentliche Vert­ragspflicht”), in­tent or Gross Negli­gence.”

re­gar­ding Clause 28 (amend­ment):
“Claims for reim­bur­se­ment of expenses of the Purc­ha­ser pur­suant to Sec. 445a BGB (recour­se of the sel­ler) also beco­me sta­tu­te bar­red
one year after the be­gin­ning of the sta­tu­to­ry li­mi­ta­tion pe­riod, pro­vi­ded that the last cont­ract in the supply chain is not for sale of
con­su­mer goods. Sus­pen­sion of the sta­tu­te of li­mi­ta­tions under Sec. 445b (2) BGB re­mains unaf­fec­ted; it shall end, at the la­test, five
years after the point in time when the Supplier de­li­ve­red the item to the Purc­ha­ser.”

re­gar­ding Clause 31, para 3 second sen­tence:
is de­le­ted

re­gar­ding Clause 38 b (amend­ment):
“The li­mi­ta­tion of the Supplier’s lia­bi­li­ty shall not apply if he has been guil­ty of in­tent, Gross Negli­gence or if the Supplier negli­gent­ly causes da­ma­ge to life, body or health.

Furt­her­mo­re, the li­mi­ta­tion of lia­bi­li­ty shall not apply in cases of negli­gent breach of a fun­da­men­tal con­di­tion of cont­ract (”wesentliche Vert­ragspflicht”). In the case of a slight­ly negli­gent breach, the Supplier shall be liable only for rea­so­nably fo­re­see­able da­ma­ge which is int­rin­sic to the cont­ract.

The said li­mi­ta­tion of lia­bi­li­ty shall also be inapplicable in cases of strict lia­bi­li­ty under the Pro­duct Lia­bi­li­ty Act (”Produkthaftungsgesetz”), for de­fects of the Pro­duct causing death or per­so­nal in­ju­ry, or da­ma­ge to items of pro­per­ty used pri­va­te­ly.
Furt­her­mo­re, the said li­mi­ta­tion of lia­bi­li­ty shall not apply in cases of de­fects the Supplier has frau­du­lent­ly concea­led or whose ab­sence he has gua­ran­teed.”

re­gar­ding Clause 39 (to be replaced by the following):
“Save as sti­pu­la­ted in Clauses 24-38, the Supplier shall not be liable for de­fects. This applies to any loss the de­fect may cause inclu­ding loss of pro­duc­tion, loss of pro­fit and other in­di­rect loss. The li­mi­ta­tion of the Supplier’s lia­bi­li­ty shall not apply if he has been guil­ty of in­tent, Gross Negli­gence or if the Supplier negli­gent­ly causes da­ma­ge to life, body or health.

Furt­her­mo­re, the li­mi­ta­tion of lia­bi­li­ty shall not apply in cases of negli­gent breach of a fun­da­men­tal con­di­tion of cont­ract (”wesentliche Vert­ragspflicht”). In the case of a slight­ly negli­gent breach, the Supplier shall be liable only for rea­so­nably fo­re­see­able da­ma­ge which is int­rin­sic to the cont­ract.

The said li­mi­ta­tion of lia­bi­li­ty shall also be inapplicable in cases of strict lia­bi­li­ty under the Pro­duct Lia­bi­li­ty Act (”Produkthaftungsgesetz”), for de­fects of the Pro­duct causing death or per­so­nal in­ju­ry, or da­ma­ge to items of pro­per­ty used pri­va­te­ly. Furt­her­mo­re, the said li­mi­ta­tion of lia­bi­li­ty shall not apply in cases of de­fects the Supplier has frau­du­lent­ly concea­led or whose ab­sence he has gua­ran­teed.”

re­gar­ding Clause 40, last sen­tence (to be replaced by the following):
“The Supplier shall however not be liable for the Purc­ha­ser’s loss of pro­duc­tion, loss of pro­fit, loss of use and loss of cont­ract.

The exclusion of the Supplier’s lia­bi­li­ty shall not apply if he has been guil­ty of in­tent, Gross Negli­gence or if the Supplier negli­gent­ly causes da­ma­ge to life, body or health. Furt­her­mo­re, it shall not apply in cases of negli­gent breach of a fun­da­men­tal con­di­tion of cont­ract (”wesentliche Vert­ragspflicht”). In the case of a slight­ly negli­gent breach of a fun­da­men­tal con­di­tion of cont­ract, the Supplier shall, however, be liable only for rea­so­nably fo­re­see­able da­ma­ge which is int­rin­sic to the cont­ract.

The exclusion of lia­bi­li­ty shall also be inapplicable in cases of strict lia­bi­li­ty under the Pro­duct Lia­bi­li­ty Act (”Produkthaftungsgesetz”) for de­fects of the Pro­duct causing death or per­so­nal in­ju­ry, or da­ma­ge to items of pro­per­ty used pri­va­te­ly. Furt­her­mo­re, it shall not apply in cases of da­ma­ge att­ri­bu­table to frau­du­lent conceal­ment or under a speci­fic gua­ran­tee gran­ted.”

re­gar­ding Clause 45:
is de­le­ted

re­gar­ding Clause 50 (amend­ment):
“The exclusion of the Supplier’s lia­bi­li­ty shall not apply if he has been guil­ty of in­tent, Gross Negli­gence or if the Supplier negli­gent­ly causes da­ma­ge to life, body or health. Furt­her­mo­re, it shall not apply in cases of negli­gent breach of a fun­da­men­tal con­di­tion of cont­ract (”wesentliche Vert­ragspflicht”). In the case of a slight­ly negli­gent breach of a fun­da­men­tal con­di­tion of cont­ract, the Supplier shall, however, be liable only for rea­so­nably fo­re­see­able da­ma­ge which is int­rin­sic to the cont­ract. The exclusion of lia­bi­li­ty shall also be inapplicable in cases of strict lia­bi­li­ty under the Pro­duct Lia­bi­li­ty Act (”Produkthaftungsgesetz”) for de­fects of the Pro­duct causing death or per­so­nal in­ju­ry, or da­ma­ge to items of pro­per­ty us