1. Governing Terms.
Our General Terms and Conditions of Sale shall exclusively apply to all contracts between us and our clients. Any differing conditions or terms of buyer are herewith objected to and shall not apply. Any agreement affecting the execution of this contract must be in writing.
All products and services offered for sale by Envirolyte Industries International Ltd. (“Envirolyte”) are sold subject to the Terms & Conditions stated herein. Except as expressly agreed by an authorized representative of Envirolyte in writing, no other terms and conditions, including any terms and conditions attached to, or contained in, Buyer’s request for quotation, acknowledgement, purchase order, or other documentation shall apply. Buyer’s acceptance of the products or services delivered by Envirolyte shall constitute an affirmation by Buyer that the Terms & Conditions set forth herein govern the purchase and sale of goods or services. THE TERMS OF THIS CONTRACT SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER
2. Offer and conclusion of contract.
Samples and catalogues are to be considered non-binding material for illustration and/or test purposes, giving only an approximation of properties and specification. The weight, volume or gage of the goods measured upon shipment is valid.
3. Price of the Goods.
Prices valid at date of delivery will be applied. We reserve the right to adapt prices, for confirmed orders as well, to reflect any increase in our costs, for any reason beyond our control, like force majeure, shortage of primary material or labor, strikes, official orders, transportation or similar problems, if this increase happens after confirmation of order but before delivery of goods. Our prices are ex works unless stated otherwise and do not include any kind of taxes.
4. Terms of Delivery.
Confirmed delivery dates are not fixed dates, unless stated otherwise. We reserve the right to postpone delivery in the case of force majeure for the duration of the obstruction plus a reasonable period of recuperation. Should delivery have become impossible by an act beyond our control we reserve the right to partially or completely rescind the contract. Strikes, unforeseeable events or interruptions of operations are considered force majeure, should we have no influence over these events. Failure to comply by a supplier only gives us the right to rescind the contract, if a replacement deal was made and failed to comply. We reserve the right to partial deliveries unless the client has no interest in them. Unless failure to comply or delay of delivery was caused by us, our lawful representatives or auxiliary persons by gross negligence or intentional acts, we will not be liable for noncompliance. Should we be liable under the terms aforementioned, liability is limited to damages that occur foreseeable and typically under the circumstances. Unless agreed otherwise, delivery is made from the Envirolyte’s premises. Goods travel at cost and danger of client, unless agreed otherwise.
5. Terms of payment.
Unless agreed otherwise, our invoices are to be paid immediately upon receipt of merchandise and invoice. Should client fail to comply within 30 days, he will automatically be in default of payment. Payment is considered made when it is at our disposal. Detention of payments or balancing of payments against claims of buyer against Envirolyte is not allowed, unless these claims are undisputed or legally established time of shipment without any setoff or deduction.
Envirolyte may offer limited open account terms to domestic and international customers. If an open account has been granted, the invoice payment is to be received within the period of days agreed to from the date of invoice. The due date is printed on the invoice. Envirolyte will charge 1.5% interest per month (18% per year) on all invoices not paid in full by the due date. In the event Envirolyte incurs any costs, expenses or attorney fees as a result of customer’s failure to timely pay invoices, customer shall be responsible for all such costs, expenses and attorney fees. Envirolyte reserves the right to alter or suspend credit or change credit terms based solely on Envirolyte’s discretion. Envirolyte objects to and is not bound by any terms or conditions on Buyer’s order which attempt to impose on Envirolyte any terms or conditions at variance with Envirolyte’s terms and conditions. Envirolyte’s prices are subject to change without notice. Unless otherwise stated, all quotations from Envirolyte are firm for a period of 60 days. Such prices quoted do not include government or local taxes, VAT, customs, transportation costs or surcharges, or duties; all of which shall be paid by Buyer.
Should there be reasons to doubt the solvency or credit standing of the client, we reserve the right to demand securities or prepayment for any outstanding delivery or declare immediate maturity of all outstanding claims.
6. Retention of Title.
Notwithstanding delivery or passage of risk in the merchandise, property of merchandise shall not pass to the buyer until full payment of all our claims against the buyer, regardless of their grounds, was made. If merchandise is processed or mixed by buyer with goods that we have no property in, we shall become co-owner of these goods, which shall be stored for us by the buyer. Processing or transformation of the goods is done in our name as a producer, but without obligation to us. Should we loose ownership due to processing or fusion, we will become partial co-owner (value of invoice) of the new product. The client will store the co-owned goods free of charge. These goods are called reserved goods in the following. Buyer has the right to process or sell these goods in the regular course of business, as long as payment obligations are fulfilled. Pledging or cession by security of these goods is not allowed. For safeguard, receivables based either on the sale of these goods or on any other ground (insurance, torts) are considered fully assigned to us. These assigned receivables are released under the condition that their achievable value exceeds the value of our secured receivables by more than 10%. Buyer authorizes us to collect them at his costs, a right that we are obliged not to exercise unless buyer fails to meet his payment obligations towards us or, particularly, institutes bankruptcy proceedings. In the case of bankruptcy or suspension of payment, we have the right to demand that buyer declares the assigned receivables, gives all information and documentation necessary for us to collect our claims and informs garnishee of the assignment. Should third parties try to claim these goods, buyer is obliged to inform them of our property and immediately inform us of the intend. Buyer will be held responsible for costs and damages. This paragraph does not apply to buyers who are neither entrepreneurs nor statutory persons as defined by the Estonia Commercial Code, General Principles of Commercial Law, Part I, Chapter 1, section 1 and 3.
7. Warranty.
The buyer, being an entrepreneur in the definition of the Estonia Commercial Code, General Principles of Commercial Law, Part I, Chapter 1, section 1 and 3, shall examine the merchandise as required by the Estonian Obligations Act, checking the goods in every aspect, and determine if merchandise is suitable for the intended purposes, if necessary by running appropriate tests. Claims will only be accepted upon detection of any fault but no later than 5 days after receiving of the goods. In the case of hidden faults claims must be made within 6 month of delivery of Goods.
If buyer is neither an entrepreneur nor statutory person as defined by the Estonia Commercial Code, General Principles of Commercial Law , Part I, Chapter 1, section 1 and 3, is also required to examine the merchandise and run appropriate tests, if necessary. Claims will only be accepted if we are informed no later than 5 days after receipt of merchandise, or within 6 month in the case of hidden faults. If any valid claim of faulty merchandise is made, we are obliged to either replace the merchandise free of charge or repair it, the choice being at our sole discretion. Buyer may chose reduction of price or cancellation of contract, should our efforts fail. In case of lack of a warranted property of the merchandise, we shall be liable for damages on the grounds of noncompliance. We will not be liable for any consequential damages caused by any defect or fault in the merchandise, since the object of the warranty is compliance of the delivered merchandise with the contract. The warranty does not cover damages to the goods that were caused by improper handling or storage after the passage of risk or where caused by external factors that were not foreseen in the contract. We will be liable according to the Estonia law Estonian Obligations Act if damages occur due to gross negligence or deliberate acts by us, our lawful representatives or auxiliary persons. If the violation of contract was not caused by an intentional act, liability will be limited to foreseeable and typical damages. Furthermore, we will be liable according to the Estonia law Estonian Obligations Act should we deliberately violate any essential duty under the contract. Any further liability is excluded, expressively for any kind of damages that occur on anything or in any way other than on the delivered merchandise itself. Binding provisions of the Estonia Product Liability Law remain unaffected. Our contracts are governed exclusively by Estonia Warranty and Product Liability Laws. The application of any law other than the Product Liability Law of the Estonia Republic is expressively excluded.
8. Returns.
Authorization, in the form of a Returned Material Authorization number (RMA#) and shipping instructions for the return of any product must be obtained by the Buyer from Envirolyte. Returned materials will be accepted only if Envirolyte’s RMA form has been completed, authorized in advance, and transportation pre-paid. Any expense incurred to restore goods to a saleable condition will be deducted from the credit to be issued covering the return unless the cost is covered by the warranty. Special goods or obsolete designs differing from the current standard product are not subject to return for credit. Final determination as to whether a product is actually defective or in warranty rests with Envirolyte.
9. Shipments and Cancellations.
All statements of prospective date of shipments are estimated. Envirolyte accepts no liability for any losses or for general, special, or consequential damages arising out of delays in delivery. Firm orders that have been accepted are subject to cancellation, or changes in specifications only on the basis of Envirolyte being reimbursed for the costs incurred. The Buyer shall specify the method of shipment. If no method is specified, Envirolyte will determine the best compromise between delivery times, transportation costs and will ship accordingly. All transportation costs of products or material shipped from Envirolyte or returned to Envirolyte will be the obligation of the Buyer. Cancellation by Buyer cannot be effective except on terms which will indemnify Envirolyte from loss of the order. Buyer’s proposed terms as to such indemnity and not as to other matters relating to cancellation are accepted, if they fulfill this condition. Orders for special material are not subject to cancellation. No material (except defective material) will be taken back and credited or replaced except upon consent from an authorized representative of Envirolyte and upon terms and conditions agreed upon by the Envirolyte in writing.
10. Risk of Loss.
Unless otherwise agreed in writing by Envirolyte, delivery will be made and title will pass to Buyer at the point of shipment. The transportation expenses shall be paid by the Buyer. Risk of loss or damage shall fall upon the Buyer. The Buyer assumes full responsibility to apply for any shipment insurance deemed necessary and to file any claims for loss or damage with the carrier.
11. Relationship.
The relationship between the parties is as an independent contractor. As such, neither party is an employee, agent or representative of the other party nor has the power to bind the other party. Each party is responsible for its own taxes.
12. Technical Advises.
Our technical advises are given according to our best knowledge and experience. Buyer is obliged to apply due diligence in verifying applicability of our advice to his special conditions of production or application. Concerning our technical advises, which are given free of charge, we will only be liable for damages caused by gross negligence or deliberate acts from our part or by our lawful representatives or auxiliary persons. Unless intentional violation of contract has been proven, we will only be liable for damages that occur foreseeable and typically.
13. Liability clause.
Liability for damages is strictly limited to the provisions made herein in paragraphs 5,6 and 7, regardless of their nature, particularly with regard to damage claims arising from fault at closure of contract, default at performance of contract or torts. Claims for damages due to impossibility or incapability remain unaffected. The same goes for liabilities that are imperative according to the provisions of the Estonia Product Liability Law. Exclusion or limitation of from our side also includes exclusion or limitation of liability of our employees, representatives and auxiliary persons.
– Liability for Defects.
1. The Envirolyte shall, in accordance with the provisions of Clauses 3–13 below, remedy any defect in the goods resulting from faulty design, materials or workmanship. The Envirolyte is not liable for defects arising out of material provided by the Buyer or a design stipulated or specified by him.
2. The Envirolyte’s liability does not cover defects caused by circumstances, which arise after the risk has passed to the Buyer. The liability does not, for example, cover defects due to conditions of operation deviating from those anticipated in the contract or to improper use of the goods. Nor does it cover defects due to faulty maintenance or incorrect installation from the Buyer’s side, alterations undertaken without the Envirolyte’s written consent or faulty repairs by the Buyer. Finally the liability does not cover normal wear and tear or deterioration.
3. The Envirolyte’s liability is limited to defects which appear within a period of one year from the date of delivery of the goods. If the goods are used more intensely than agreed, this period shall be reduced proportionately.
4. For parts, which have been repaired or replaced under Clause 1, the Envirolyte shall have the same liability for defects as for the original goods for a period of one year. For other parts of the goods the liability period referred to in Clause 3 shall be extended only by the period during which the goods could not be used due to a defect for which the Envirolyte is liable.
5. The Buyer shall notify the Envirolyte in writing of a defect without undue delay after the defect has appeared and in no case later than two weeks after the expiry of the liability period defined in Clause 3 as supplemented by Clause 4. The notice shall contain a description of how the defect manifests itself. If the Buyer fails to notify the Envirolyte in writing within the above time limits, he loses his right to make any claim in respect of the defect .If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Buyer loses the right to make any claim based on damage which occurs and which could have been avoided if such notice had been given.
6. After receipt of a written notice under Clause 5, the Envirolyte shall remedy the defect without undue delay. Within this limit time for remedial work shall be chosen in order not to interfere unnecessarily with the Buyer’s activities. The Envirolyte shall bear the costs as specified in Clauses 1–12.Remedial work shall be carried out at the Buyer’s premises unless the Envirolyte finds it appropriate to have the defective part or the goods sent to him for repair or replacement at his own premises. The Envirolyte shall carry out dismantling and re-installation of the part if this requires special knowledge. If such special knowledge is not required, the Envirolyte has fulfilled his obligations in respect of the defect when he delivers a duly repaired or replaced part to the Buyer.
7. If the Buyer gives such notice as referred to in Clause 5, and no defect is found for which the Envirolyte is liable, the Envirolyte shall be entitled to compensation for the work and costs which he has incurred as a result of the notice.
8. If remedy of the defect requires intervention in other equipment than the goods, the Buyer shall be responsible for any work or costs caused thereby.
9. All transports in connection with repair or replacement shall be at the Envirolyte’s risk and expense. The Buyer shall follow the Envirolyte’s instructions regarding how the transport shall be carried out.
10. The Buyer shall bear the increase in costs for remedying a defect which the Envirolyte incurs when the goods are located elsewhere than at the destination stated in the contract or – if no destination has been stated – the place of delivery.
11. Defective parts, which have been replaced under Clause 1, shall be placed at the Envirolyte’s disposal and shall become his property.
12. If the Envirolyte fails to fulfil his obligations under Clause 6 within a reasonable time, the Buyer may by written notice require him to do so within a final time. If the Envirolyte fails to fulfil his obligations within that time limit, the Buyer may at his option:
a) have the necessary remedial work carried out and/or have new parts manufactured at the Envirolyte’s risk and expense, provided that the Buyer proceeds in a reasonable manner, or
b) demand a reduction of the agreed purchase price not exceeding 15 per cent thereof. If the defect is substantial, the Buyer may instead terminate the contract by written notice to the Envirolyte. The Buyer shall also beentitled to such termination where the defect remains substantial after measures referred to in a). In case of termination, the Buyer shall be entitled to compensation for the loss he has suffered. The compensation shall not, however, exceed 15 per cent of the agreed purchase price.
13. Regardless of the provisions of Clauses 1–12, the Envirolyte shall have no liability for defects in any part of the goods for more than two years from the start of the liability period referred to in Clause23.
14. The Envirolyte shall have no liability for defects save as stipulated in Clauses 1–13. This applies to any loss the defect may cause, such as loss of production, loss of profit and other consequential economic loss. This limitation of the Envirolyte’s liability shall not apply, however, if he has been guilty of gross negligence
– Liability for Damage to Property Caused by the Goods
The Buyer shall indemnify and hold the Envirolyte harmless to the extent that the Envirolyte incurs liability towards any third party in respect of loss or damage for which the Envirolyte is not liable towards the Buyer according to the second and third paragraphs of this Clause.
The Envirolyte shall have no liability for damage caused by the goods:
a) to any (movable or immovable) property, or consequential loss due to such damage, occurring while the goods are in the Buyer’s possession, or
b) to products manufactured by the Buyer or to products of which the Buyer’s products form a part.
The above limitations of the Envirolyte’s liability shall not apply if he has been guilty of gross negligence
If a third party lodges a claim for compensation against Envirolyte or Buyer for loss or damage referred to in this Clause, the other party to the contract shall forthwith be notified thereof in writing. The Envirolyte and the Buyer shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal which examines claims against either of them based on damage or loss alleged to have been caused by the goods. The liability as between Envirolyte and the Buyer shall, however, always be settled by arbitration in accordance with Article 15.
14. Confidentiality.
Confidential Information means information that is not known to the general public and proprietary to Envirolyte and material to Envirolyte’s business or that Envirolyte is obligated to treat as proprietary or confidential including, but not limited to, Envirolyte’s business operations, customers, contacts, developers, pricing information, employee information, drawings, plans, specs, database, data, know how, discoveries, production methods or any other confidential information. Envirolyte/User acknowledges and agrees that such information is confidential, greatly affects the success of the business of Envirolyte and that Envirolyte/User will not disclose or use any such Confidential Information outside of the current transaction with Envirolyte.
15. Governing Law.
Disputes arising out of or in connection with the contract shall not be brought before the court, but shall be finally settled by arbitration in accordance with the law on arbitration applicable in the Estonian Republic.
Place of execution and place of venue is Tallinn, Estonia. We reserve the right to sue at buyer’s place of business. These General Terms and Conditions of Sales, as well as all our business relations with our clients, are governed exclusively by the Laws of the Estonian Republic. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressively excluded. Please note that some of our goods might require exportation license under Estonia law or might be subject to export restrictions of the USA or under the Nonproliferation treaty. These provisions are to be observed by the buyer in case of sale or exportation of the goods.
16. Salomonic Clause.
Should one of the clauses above or part of one of the clauses above be legally invalid, validity of the other clauses of these General Terms remain Unaffected.
These terms and conditions apply to your purchase and use of all products from Envirolyte Industries International Ltd. By ordering such products you agree to these Terms & Conditions.
