In this page the following words shall have the following meanings:
1.1 “Buyer” means the organization or person who buys Goods from the Seller;
1.2 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 “Delivery date” means the date specified by the Seller when the Goods are to be delivered;
1.4 “Goods” means the articles to be supplied to the Buyer by the Seller;
1.5 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.6 “Price” means the price set out in the list of prices of the Goods maintained by the Seller as amended from time to time or such other price as the parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these conditions;
1.7 “Seller” means HMF Corporation SA, Avenue Beauregard 1 1700 Fribourg
2.1 The Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any purchase order, order confirmation or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to the Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of the Conditions.
2.4 Any variation to the Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.
2.5 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and, accordingly, the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed.
2.6 Nothing in the Conditions shall affect the statutory rights of any Buyer dealing as a consumer.
3.1 Payment of the Price is strictly payment with order unless otherwise agreed by Seller and the Buyer.
3.2 The Seller shall be entitled to charge interest in case of late payment at a rate of 5% per annum.
3.3 The Seller reserves the right to grant, refuse restrict, cancel or alter possible credit terms at its sole discretion at any time and in compliance with the applicable law.
3.4 If payment of the Price or any part thereof is not made by the due date, the Seller shall act as per the applicable law and be entitled notably to:
3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit;
3.4.4 terminate the contract.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
6.3 If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall be entitled to place the Goods in storage until such time as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
6.4 If the Buyer fails to accept delivery of Goods on the delivery date or within 3 days of notification that they are ready for despatch whether prior to or after the delivery date the Seller reserves the right to invoice the Goods to the Buyer and charge him therefore. In addition the Buyer shall then pay reasonable storage charges or demurrage as appropriate in the circumstances until the Goods are either despatched to the Buyer or disposed of elsewhere.
6.5 The Seller shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with the Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related contract as repudiated.
6.6 Where the Buyer requires delivery of the Goods by instalments, rescheduling requires the Seller’s written agreement and will not be possible unless at least 3 month’s notice is provided and so agreed. Each delivery shall constitute a separate contract and failure by the Buyer to pay the Price in respect of any instalment shall entitle the Seller to treat any other related contract as repudiated in addition to any other rights of the Seller pursuant to the Conditions.
6.7 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the delivery date.
7.1 The Seller is a distributor of goods and the Buyer is exclusively responsible for detailing the specification of the Goods, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.
7.2 The Buyer is required to test Goods upon delivery and shall be deemed to have accepted the Goods 7 business days after delivery to the Buyer. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to the Conditions) unless written notice together with all supporting evidence is received by the Seller within 7 business days of delivery. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
7.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods.
7.4 The Buyer shall accept delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the Price to be adjusted pro-rata to the discrepancy.
8.1 Risk of damage or loss of the Goods shall pass to the Buyer upon shipment.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the conditions, the property in the Goods shall not pass to the Buyer until the Seller has cleared funds payment in full of the Price of the Goods and of all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
9.1 Where the Goods are found to be defective, the Seller shall replace defective Goods free of charge within the manufacturer’s warranty period if acceptable from the date of delivery, subject to the following conditions;
9.1.1. the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
9.1.2. the defect being due to faulty design, materials or workmanship;
9.2 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
9.3 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer and the Buyer shall have no other remedy against the Seller
9.4 The Seller shall be entitled in its absolute discretion to refund the Price of the defective Goods in the event that the Price has already been paid.
9.5 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to conditions 11 and 12 below.
10.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:-
10.1.1. the correspondence of the Goods with any description or sample;
10.1.2. the quality of the Goods; or
10.1.3. the fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
10.2.1. the correspondence of the Goods with any description;
10.2.2. the quality of the Goods; or
10.2.3. the fitness of the Goods for any purpose whatsoever.
10.3 Except where the Buyer deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are hereby excluded from the contract to the fullest extent permitted by law.
10.4 For the avoidance of doubt the Seller will not accept any claim for consequential or financial loss of any kind however caused.
11.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the Price.
11.2 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s gross negligence or that of its employees or agents.
12.1 Where any Goods supplied by the Seller embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable end user licence, to the exclusion of all liabilities and obligations on the Seller’s part.
12.2 The Buyer will indemnify the Seller against all liabilities for infringement of third party intellectual property rights arising from the Seller’s compliance with the Buyer’s specific requirements regarding design or specification for the Goods or arising from the use of the Goods in combination with other products.
12.3 In the event that all the Goods or the use thereof (subject as aforesaid) are held to constitute an infringement of any intellectual property rights, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Goods.
12.4 All Intellectual Property Rights produced from or arising as a result of the performance of any contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
The Seller shall not 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, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.
Nothing contained in the Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
The contractual relation between the Buyer and Seller shall not be assigned or transferred without the prior written consent of both parties.
The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions.
If any term or provision of the Condition 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 hereof shall continue in full force and effect as if the Condition had been agreed with the invalid, illegal or unenforceable provision eliminated.
The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
All contractual relations between the parties shall be governed by and construed in accordance with the law of Switzerland.
Any dispute, controversy or claim arising out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be submitted to mediation in accordance with the Swiss Rules of Mediation of the Swiss Chambers’ Arbitration Institution in force on the date when the request for mediation was submitted in accordance with these Rules. The number of mediator shall be one. The seat of the mediation shall be Geneva in Switzerland where the meetings shall be held. The mediation shall be conducted in English.
If such dispute, controversy or claim has not been fully resolved by mediation within 60 days from the date when the mediator has been confirmed or appointed, it shall be settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date when the Notice of Arbitration was submitted in accordance with those Rules. The number of arbitrators shall be three. The seat of the arbitration shall be Geneva in Switzerland where the meetings shall be held. The arbitration shall be conducted in English.