Enser's General Sales Terms and Conditions
1. GENERAL
1.1 These Terms and Conditions (the "Terms") and the Order Form (the "Order") submitted by the Buyer of the Goods and/or Services (the "Customer"), as confirmed in accordance with Clause 1.2, constitute the entire agreement (the "Agreement") between [ENSER, d.o.o.] ("ENSER") and a customer for the supply of goods and/or services, which supersedes all prior agreements, negotiations, arrangements, agreements, contracts and other communications.
1.2 These terms and conditions apply to orders executed by the customer for the supply of goods and/or services and which are issued in accordance with the framework agreement or individually. Each order is an offer by the customer to purchase goods and/or services in accordance with the terms of the agreement, which ENSER may accept or reject at its sole discretion. Each order is accepted when ENSER issues a written confirmation of the order. If an order deviates from these terms and conditions in any form (even if the customer refers to its own terms and conditions in the order or elsewhere), such deviation is null and void, unless agreed in writing with ENSER. 1.3 In these terms, the individual terms have the following meanings: a) "goods" means any goods ordered and received by the customer; b) "services" means all services relating to goods received by the customer from ENSER (or a third party); c) "business day" means a day (excluding Saturdays, Sundays or holidays) on which Slovenian banks operate; (d) "Group" means, in relation to the Company, any branch or undertaking which is occasionally owned by that Corporation and any Branch which is occasionally owned by the Parent Company.
2. PRICING
2.1 The price of goods and/or services is the price specified in the confirmed order; If the price is not specified, the latest version of the price list is valid, which the customer is familiar with at least 7 days before the delivery date. ENSER may change the price lists from time to time on the basis of a 7-day prior notice sent to the customer.
2.2 Unless otherwise stated, all prices quoted do not include taxes (including value added tax) ("VAT"). If VAT is payable on any of the supplies as agreed, the customer must pay the amount of VAT to ENSER on the supply of goods and/or services.
2.3 On the basis of prior notice to the customer, ENSER may increase the price of goods and/or services at any time up to 7 days prior to delivery, if this is necessary due to an increase in costs beyond ENSER's control (including currency fluctuations, increases in taxes and duties, higher costs of labor, materials and other production costs).
3. PAYMENT
3.1 ENSER may issue an invoice to the customer for each order upon delivery or at any time after delivery.
3.2 The customer must make the payment in full and pay it to ENSER (without set-off, counterclaim or deduction) as indicated on the relevant invoice within 30 days from the invoice date. ENSER may at any time, without limiting any other rights or remedies available to it, offset any amount owed to it by the customer against any amount paid by ENSER to the customer.
3.3 If the customer fails to make the payment in accordance with clause 3, all amounts owed by the customer to ENSER shall be due immediately.
3.4 ENSER may suspend or cancel deliveries of goods and/or services to the customer without prior notice if the customer fails to make payments in accordance with this clause 3.
3.5 In addition to the rights that ENSER has under the agreement, if the customer fails to make payments by the due date, it must pay all interest on any amount owed by the customer, which begins to run up to and including the due date until the date of actual payment. This interest is subject to a 10% annual interest rate, which increases daily.
3.6 All payments to ENSER under the Agreement shall be due immediately upon termination of the Agreement. This clause 3.6 does not affect any right to demand payment of interest under the law or this Agreement.
4. DELIVERY
4.1 Unless otherwise agreed in writing with ENSER, each order is delivered to "ExWorks" (Incoterms, 2010). If ENSER agrees to deliver the goods outside its business premises, the customer must pay ENSER all transport, packaging and insurance costs.
4.2 The delivery of the order shall be extended in due time at: (a) force majeure; (b) delay caused by the customer or by a third party for which the party is responsible; (c) a request for amendment made by a party.
4.3 If ENSER fails to deliver the goods and/or perform the services, its obligations to the customer shall be limited by the payment of a contractual penalty to the customer (determined in accordance with this clause 4.3), whereby ENSER must always confirm in writing to the customer the date by which it will deliver the goods and/or services, whereby: a) the delay is caused solely by ENSER; b) if the 14-day grace period from the original or extended delivery date expires; c) that the customer immediately informed ENSER. If ENSER is required to pay a contractual penalty, it shall pay the customer 1 % of the value of the goods whose delivery is delayed, for each full week of delay, up to a maximum of 10 % of the value of the contract to which the delay relates. The payment of the contractual penalty is the only and exclusive means of the customer that he can use in such cases of delay.
4.4 ENSER reserves the right to execute orders in parts, for which it issues invoices and requests payments separately. References in the contract agreement shall, where appropriate, be read as references to individual deliveries.
4.5 The customer may reject goods received that do not conform to the relevant specifications agreed by the parties, but must provide the rejection notice to ENSER within 7 days of delivery. If the customer fails to provide a notice of refusal in accordance with clause 4.5, it shall be presumed that he has accepted the goods.
4.6 If the customer does not take over the goods within 3 days from the date on which ENSER informs the customer that the goods are ready, if the takeover is not carried out solely due to force majeure or if ENSER fails to perform its obligations in accordance with the agreement, the following shall apply: a) the delivery of the goods shall be deemed to have taken place at 9.00 a.m. on the fourth day following the date on which ENSER notifies the customer, that the goods are ready; b) ENSER keeps the goods until delivery and charges the customer for all related costs (including insurance).
5. REQUEST FOR CHANGE AND CANCELLATION
5.1 The customer may request a reasonable change to the order ("change request") and ENSER is entitled to decide (at its sole discretion) whether to accept this change request. If ENSER accepts such a request for a change, it may increase the price, extend the delivery time(s) and change other terms of the agreement as is reasonable in the circumstances. ENSER is not obliged to implement the change request until both parties have signed a change agreement specifying: price increase, new delivery time(s) and other conditions that are changed.
5.2 The customer may cancel this order within 3 days of placing the order by means of a written notice sent to ENSER. If the customer cancels the order, he must pay compensation to ENSER for all actual and potential damages and costs that would arise as a result of the cancellation of the order form.
6. RISKS AND LEGAL TITLE
6.1 The risk of the goods is transferred to the customer upon delivery. The customer acquires the right to the goods when ENSER receives full payment in accordance with clause 3.
6.2 Until title to the goods passes to the customer, the customer: a) holds the goods at fiduciary level as a depositary for ENSER; (b) obtain and maintain full insurance with a reputable insurance undertaking for all goods with a value at least equal to the contractual value from the date of delivery; (c) may sell the goods only in the ordinary course of business; d) not to encumber or otherwise charge the goods; e) keep the goods separate from their own goods or those of other parties in a manner that clearly demonstrates that the goods are the property of ENSER; (f) may not remove, alter or obscure any distinctive mark or packaging on or in connection with the goods; g) it must provide ENSER with information relating to the goods from time to time, as requested by ENSER.
6.3 In addition to the rights granted by the customer to ENSER, the following applies: a) if any amount owed by the customer to ENSER for the goods is not paid within 30 days after the original due date; b) if the customer is in breach of the Agreement, or c) if the Customer is subject to the cases listed in Clause 16.1, ENSER may terminate the Agreement and regain ownership of the goods for which ENSER has not received full payment; thus, the customer irrevocably authorizes ENSER to enter any of the customer's premises for this purpose.
7. WARRANTY
7.1 Subject to clauses 7.2 and 7.3, ENSER will, at its option, repair or replace within a period of 12 months from the date of delivery any goods or part of the goods that are materially defective due to a defect in manufacture, material or workmanship ("Warranty"). The customer will cover the dismantling and reinstallation of any repaired or replaced meter and will allow transportation to ENSER's business premises, unless otherwise agreed. During the said period, ENSER will again perform all services that are demonstrably materially different from the quality of services stipulated in the agreement.
7.2 The warranty is valid only in the following cases: a) for goods manufactured by ENSER; (b) for goods which are installed, maintained, used and protected under normal conditions and in accordance with any technical specifications or instructions provided or published by ENSER for the goods from time to time; c) if the customer complies with and uses the goods in accordance with all applicable laws, regulations, industry standards, rules and regulations; d) if the customer notifies ENSER in writing of the defect within 3 days from the day on which the defect is discovered (or when the customer is supposed to recognize such a defect); e) if the customer does not use these goods after the notification of the defect has been sent, in particular if there are safety concerns; f) if ENSER is given a reasonable opportunity to explore such goods.
7.3 The warranty does not apply: a) if the defect is due to normal wear and tear, intentional damage or negligence; b) if the customer modifies or repairs the goods without the written consent of ENSER; c) if the goods differ from the specifications due to changes made in order to comply with applicable legal or regulatory requirements, or d) if the defect is determined by ENSER.
7.4 The warranty set out in clause 7.1 is the exclusive guarantee provided by ENSER in accordance with the agreement, and the means set out in clause 7.1 are the sole and exclusive means of remedying the breach of warranty. Any claim for damages or other compensation is expressly excluded.
7.5 All warranties and conditions, other than express, implied or verbal, legal or otherwise, arising out of the Agreement or by law, are excluded to the fullest extent permitted by law, other than those set forth in the Agreement, including, without limitation, the implied warranties of merchantability, non-infringement and fitness.
7.6 The Customer shall ensure that in the selection of the relevant goods and/or services, it has used all its knowledge regarding the procurement and assessment of its ability for the required purpose and that it has not relied to the full extent permitted by law and in accordance with clause 7.4 on any representation or agreement made by ENSER, other than those set out in the agreement.
8. PROPERTY RIGHTS
8.1 ENSER retains all right, title and interest in any trademark, copyright, patent or patent use, know-how, design, utility model, trade name and other intellectual property or proprietary right (registered or unregistered) in the goods and/or services and in the production of the goods (including the technology, know-how and processes used in the production of ENSER's goods) and in respect of all reports, manuals, specifications or materials prepared and made available by ENSER ("Intellectual Property").
8.2 The Customer acknowledges that the Intellectual Property is licensed and owned by ENSER and that it represents valuable information and/or property of ENSER. ENSER grants the customer a non-exclusive and non-transferable license to use the intellectual property for the goods for the purpose of receiving, installing, operating and maintaining the goods. Such a licence does not include the right to sub-license or reverse engineer goods.
8.3 If any goods infringe the intellectual property rights of any third party, ENSER shall pay damages to the customer for damages that the customer would suffer as a result of claims relating to the infringement and any obligation to settle claims in accordance with clause 8.3, subject to the following conditions: (a) the customer must immediately notify ENSER in writing of any claim of which it has been notified; b) the customer may not accept any claim without the prior consent of ENSER; c) the party must, at the request and at ENSER's expense, authorise the party to carry out and settle (or supervise the execution and settlement) of all negotiations and litigation arising out of such claims; d) the party must always act in accordance with ENSER's reasonable instructions in relation to the claim and, at ENSER's request, obtain all reasonable assistance in any negotiation or litigation; e) ENSER may require the customer to act as ENSER reasonably requests for mitigation purposes, or reduction of losses, damages, costs or expenses to be reimbursed by ENSER to the customer in accordance with this clause 8.3; f) all legal costs to be borne by the party for the purpose of litigating in connection with the claim shall be borne on behalf of ENSER and, if those costs are paid to the party, shall be paid by the party to ENSER immediately upon receipt.
8.4 ENSER is entitled to: a) replace the goods with such goods which do not constitute an infringement, but which must have materially exactly the same technical characteristics as the goods constituting the infringement, or b) obtain a licence for the customer to use these goods at its own expense.
8.5 ENSER shall have no obligation under clauses 8.3 and 8.4 if the alleged infringement arises from the following facts: b) the customer has used the goods after ENSER has informed ENSER that necessary modifications have been made to avoid claims; (b) if changes to the goods are made without the consent of ENSER; c) if the customer uses the goods in combination with equipment, products, processes or materials, and the infringement would not have occurred if the customer had not used them; d) if the customer uses the goods in a manner that has not been approved by ENSER in writing or otherwise or is not specified in the agreement; e) if the customer violates the terms of the agreement or due to negligence, intentional conduct, fraud or omission to act, or if) if ENSER uses or complies with all designs, specifications, information and instructions provided by the customer or a third party. In such cases, the customer must indemnify ENSER for all costs, claims, losses, damages, claims and expenses (including all legal costs, fees and expenses) arising directly or indirectly from the claims set out in this clause 8.5.
8.6 Clauses 8.4 and 8.5, to the fullest extent permitted by law, constitute the Party's sole and exclusive remedy for remedying the breach, claim for breach as set forth in clause 8.5.
9. LIMITATION OF LIABILITY
9.1 Except as provided in clause 9.2, the full liability of ENSER in accordance with or in connection with the Agreement and the relevant Order shall in no case exceed 20% of the amount paid by the Customer to ENSER in accordance with the relevant Order.
9.2 The limitation of liability set out in clause 9.1 does not apply in the following cases: a) death or personal injury resulting from negligence; b) in the event of damage to physical property; or c) in the event of an infringement of an intellectual property right of a third party, which in cases a), b) and c) is limited to a total of fifty thousand euros (€50,000) for a single event or a series of related events.
9.3 Notwithstanding the other provisions of the Agreement, ENSER shall in no case be liable to the Customer for loss of profit, income, interest or goodwill, loss or distortion of data, loss or disruption of the Client's business, or for economic, special, indirect or consequential loss or damage.
9.4 The remedies available to the party under the agreement are exclusive remedies if ENSER breaches the agreement, and the remaining remedies are therefore excluded.
10. OBLIGATIONS OF THE CLIENT
10.1 The customer is responsible for the inspection, storage, installation, testing and maintenance of the goods.
10.2 The Customer shall indemnify and hold ENSER harmless from and against all damages, costs, losses, damages, claims (including claims by third parties) or judgments arising out of or in connection with: a) misuse or negligence related to the Goods, including any unintended use of the Goods; (b) misrepresentation, misrepresentations in relation to goods and/or services; c) any change to the goods made or permitted by the customer (including changes made by ENSER in accordance with the customer's specifications, instructions or guidelines); or d) a party's breach of agreement.
11. FORCE MAJEURE
11.1 If the supply from ENSER or its operations are disrupted or hindered by force majeure including strike, lockout, industrial dispute (involving its own or a third party's workforce), war, insurrection, riot, fire, explosion, flood, earthquake, seismic sea wave, severe weather conditions, accident, factory or plant failure, government intervention, delay of suppliers or subcontractors due to cause, beyond ENSER's reasonable control, ENSER is entitled to suspend, reduce and/or suspend the supply of goods or services during the period of such disruption or restriction without further liability.
11.2 Both parties shall notify each other of the termination of any agreement or contract pursuant to the Agreement, without prejudice to their rights if the period of disruption or restriction under clause 11.1 would exceed 90 days.
12. CONFIDENTIALITY
12.1 Except as permitted or required by an agreement, neither party may use or disclose confidential information to other persons without the prior express written consent of the other party.
12.2 For the purposes of this clause 12, "confidential information" of a customer ("disclosing party") means any information relating to the business, knowledge, products, services, customers, suppliers, or other affairs of the disclosing party or other members of its group (including any information disclosed by a third party to the disclosing party), but which excludes information that: (i) is publicly known or becomes public knowledge in a manner; which does not breach an agreement or other confidentiality obligation; ii) they are disclosed to the other party, which the third party does not limit or constitute a breach of the third party's confidentiality; or (iii) which the other party itself identifies without relying on any confidential information of the disclosing party.
12.3 Each party may disclose confidential information to the other party when required to do so by law or by any regulatory authority, including listed exchanges on which the client or any member of its group is listed, provided that it is legally permitted to disclose such information, but must inform the other party to the fullest extent possible, provided that such disclosure is not prohibited, and comply with any reasonable requests of the other party regarding the content of the disclosure.
12.4 Each Party may disclose the other Party's confidential information to its personnel performing tasks for which it requires the information, provided that, when such information is disclosed, the Party shall ensure that any person who becomes aware of such information will: (a) be informed of the confidentiality of such information; b) comply with confidentiality obligations in accordance with the agreement.
12.5 Neither party may disclose the terms of the Agreement to any third party unless it is in accordance with clauses 12.3 and 12.4. 12.6 Both parties must establish and implement security measures to prevent unauthorized use or disclosure or unauthorized access, loss or damage caused to the other party's confidential information.
13. EXPORT
13.1 The goods supplied by ENSER to the customer are intended only for use in the country in which the delivery is made, and the customer must disclose the end user of the goods to ENSER. Upon re-export, the customer must ensure compliance with the legal export regulations of the country of delivery and/or the relevant country in which the goods are produced, and ENSER will not be liable if the customer violates these laws and regulations.
13.2 A Party may not allow a third party to export, re-export or otherwise transfer goods to any country or to persons not authorised or embargoed by the EU. The Customer understands and agrees that the goods may be subject to EU export control laws and regulations and export and import regulations in other countries and that it is solely responsible for compliance with all such laws and regulations.
14. PERMITS, APPROVALS
14.1 The Customer ensures that it has all licenses, permits and approvals necessary for the purchase and use of the goods and/or services and that nothing restricts it in entering into agreements and arrangements for the purchase or resale of goods and/or services.
15. OTHER DESCRIPTIVE DOCUMENTS
15.1 ENSER may provide any samples, descriptive specifications, sketches, illustrations, data, dimensions, weight data and specific characteristics of the goods and/or services (in catalogues, advertising materials or otherwise), which may be approximate and are intended exclusively to provide general information about the goods and/or services described in these materials and do not form part of the agreement and have no contractual force (unless agreed by the parties in writing).
16. TERMINATION
16.1 ENSER may terminate the agreements at any time by giving one month's prior written notice to the customer.
16.2 Both parties may terminate the agreement with immediate effect on the basis of written notice sent to the other party if the other party: a) materially breaches its obligations under the agreement and (if the breach can be remedied) fails to remedy the breach within 30 days from the date on which it is notified of the breach in writing; or b) if it is liquidated (except for the purposes of renewal or concentration) or a trustee or insolvency administrator is appointed; (c) suspend or threaten to suspend the payment of its debts.
16.3 Any termination of the Agreement shall not affect the rights and remedies of the parties that were in force at the time of termination. If ENSER terminates this Agreement in accordance with clause 16.1 or if the agreement terminates for the reasons described in clause 16.2, all amounts owed by the customer to ENSER shall be payable without the need for prior notice. Upon termination of this Agreement due to the Party's failure to perform its obligations, the Party shall pay all reasonable costs, duties and damages incurred by ENSER as a result of such termination of the Agreement in accordance with clause 16.2.
17. NOTICES
17.1 All notices and other communications that take place between the parties in connection with the agreement must be made in writing and sent to the customer's registered address (if it is a company) or its registered office (in other cases) or the address communicated by the customer to the other party in writing in accordance with this clause 17 and shall be given in person, with first-class registered mail, registered delivery, via commercial courier, fax or e-mail.
17.2 A notice or other communication shall be deemed to have been received if: it is received in person, transmitted to the address specified in accordance with clause 17.1; it is sent by first-class registered mail or registered delivery by 9.00 am on the second working day after dispatch; if it is delivered by a commercial courier on the day and at the time when the courier's delivery slip is signed, or if it is sent by fax or e-mail one working day after the transfer.
18. COMPLIANCE
18.1 The Party assures that it will always comply with all obligations arising from the Agreement, in strict compliance with all applicable laws and regulations in the field of the environment, health, safety and export controls.
18.2 The customer agrees to comply with ENSER's policies/standards of conduct and to comply with all of its provisions and to ensure, when necessary, that each legal entity within its group complies with these provisions.
18.3 The customer guarantees that it has not directly or indirectly paid monetary benefits to its customers, ENSER officers or its employees or third parties, including but not limited to commissions, fees, illegal commissions, or granted discounts or gifts, facilitated parties and other non-monetary benefits or other arrangements.
18.4 If a customer violates this clause, this is considered a material violation. The customer shall indemnify and hold ENSER liable for any claims, loss or damages resulting from the breach of the Client's obligations pursuant to this clause 18.
19. GENERAL
19.1 If any provision is found to be invalid, the other provisions of the Agreement shall not be affected. An invalid provision must be amended and replaced with a valid provision that reflects the commercial intentions of the parties.
19.2 The failure of ENSER to exercise or exercise its rights in accordance with the Agreement shall not constitute and shall not be regarded as a waiver of the right and shall in no case affect ENSER's entitlement to the subsequent exercise and exercise of these rights.
19.3 ENSER may use subcontractors to carry out the supply of goods or services and may assign or transfer its responsibilities, rights and obligations under the agreement to any company within the group without prior written notice to the customer.
19.4 The customer may not assign or transfer his rights or obligations without the prior written consent of ENSER.
20. APPLICABLE LAW AND RIGHTS OF THIRD PARTIES
20.1 This Agreement is governed by Slovenian law, which excludes conflicts of law, and the parties irrevocably transfer non-exclusive jurisdiction to the Slovenian courts to resolve any disputes.
20.2 The application of the UN Convention on Contracts for the International Sale of Goods (1980) (as amended from time to time) is excluded.
20.3 A person who is not a party to the Agreement shall have no rights under or in connection with the Agreement.