COMMESH STANDARD TERMS
AND CONDITIONS FOR SUPPLY OF PRODUCTS
These terms and conditions (the “Terms and Conditions”) set out the terms on which Commesh UAB, a company registered in Lithuania with registered number 303376861 whose principal place of business is at A. Tumeno str 4, 01109 Vilnius, Lithuania (the “Seller”), will supply its Products (as defined below) to the Buyer (as defined below).
1. DEFINITIONS
The following terms have the meanings set forth below whenever they are used in these Terms and Conditions:
1.1. Buyer means the customer whose details are set out on the Order and who seeks to purchase the Products.
1.2. Confidential Information shall mean any and all information that is disclosed by one Party to the other Party and that relates to the Party’s business or the Parties’ business relationship hereunder, including, but not limited to, information concerning the Party’s finances, products, services, customers, suppliers and Products as defined hereunder.
1.3. Contract means these Terms and Conditions and either the Quotation (if one has been prepared) or the Price List (if no Quotation has been submitted by the Seller), together with the Order and the Order Acknowledgement.
1.4. Delivery Terms shall mean the INCOTERMS specified in the relevant Quotation or (if none has been prepared) DAP as defined in INCOTERMS 2010.
1.5. Intellectual Property Rights shall mean all intellectual property rights worldwide arising under statutory or common law, and whether or not perfected, including but not limited to (i) patents, patent applications, and patent rights; (ii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications, and mask work registrations; (iii) rights relating to trademarks, service marks, designs, and utility models; (iv) rights relating to the protection of trade secrets and confidential information; (v) any other proprietary rights relating to intangible property, such as know-how and any good-will acquired or generated; and (vi) divisions, continuations, renewals, re-issues and extensions of the above rights, now existing and hereafter filed, issued, or acquired.
1.6. Order shall mean a purchase order for the Products, issued by the Buyer and referencing either the Price List or a Quotation, and which is subject to these Terms and Conditions to the exclusion of all others.
1.7. Order Acknowledgement shall mean the Seller’s written acknowledgement and acceptance of an Order.
1.8. Price List shall mean Seller’s current price list for the Products, as made available to Buyer by Seller in electronic form, and as amended from time to time at Seller’s sole discretion.
1.9. Product(s) shall mean the product(s) selected by the Buyer from the Seller’s Price List.
1.10. Quotation shall mean the Seller’s written proposal for the provision of the Products to the Buyer.
2. PRICES
2.1. The Products shall be sold to the Buyer at the prices set out in the Seller’s Price List. The Price List may be changed at any time at the sole discretion of the Seller.
2.2. The currency of the Price List shall be EUR or USD. All currency matters shall be settled in the Order submitted by the Buyer.
3. ORDER
3.1. The Buyer shall send the Order(s) for the Product(s), including the delivery terms, to the Seller by e-mail.
3.2. The Seller will accept order(s) by issuing an Order Acknowledgment, in which the Seller will accept the terms and conditions of the Order and confirm the terms of the Order by e-mail.
3.3. In case the Buyer cancels the Order after it has been confirmed by the Buyer, the Buyer shall indemnify the costs incurred by the Seller in relation with the preparation of the Order.
3.4. Invoice of the Order shall be delivered together with the Product(s) or sent by email.
4. DELIVERY
4.1. Product(s) are delivered under DAP terms (Incoterm 2010). In the cases where DAP is not possible, other Incoterm 2010 will be agreed on a separate note.
4.2. Allocations of costs to the Buyer / Seller shall be made according to Incoterms 2010.
5. PAYMENT
5.1. The total price of the Order shall be paid to the Seller according to the payment terms indicated in the Seller's Quotation.
5.2. In case the Buyer delays to pay for the Product(s) delivered, he shall pay 0,05% fine from the outstanding amount for each day of delay.
6. WARRANTY
6.1. The Parties agree that having detected any defect the Buyer will contact the Seller’s responsible person by e-mail (the contact details of the Seller’s responsible employee shall be provided to the Buyer) and describe the problem in English as precisely as possible. Only in case of failure to provide assistance to the Buyer remotely, the Product(s) must be shipped to the Seller.
6.2. The Seller undertakes to repair or replace any defect, which appears within a period of 24 months from the date of invoice.
6.3. Standard repair or replacement time is 30 working days. In case the repair within 30 working days is impossible due to objective reasons provided by the Seller, the Parties shall agree on a further reasonable date.
6.4. The transportation of the defected Product(s) or parts to the Seller shall be made on the account and risk of the Buyer.
6.5. The transportation of the repaired or replaced Product(s) or parts to the Buyer shall be made on the account of the Seller. After the expiry of the warranty period of 24 months, all transportation costs shall fall on the Buyer.
6.6. The Seller shall be under no liability under the warranty in Article 6.2 above:
6.6.1. if the total price for the Product(s) has not been paid by the due date for payment;
6.6.2. in respect of any type of defect, damage or wear specifically excluded by the Seller by notice in writing;
6.6.3. if there are any signs that the Buyer opened the Product case and tried to modify or repair it.
7. LIABILITY
7.1. The Seller shall not be liable against the Buyer or any third persons in any event for incidental or consequential damages, including lost profits, in case of fair wear and tear, willful damage, negligence, abnormal storage or working conditions, failure to follow the Seller’s instructions (whether oral or in writing) or good trade practice regarding the same, misuse or alteration or repair of the Product(s) without the Seller’s approval.
7.2. The Buyer shall compensate against all the Seller’s liabilities, costs, expenses, damages and losses, (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Seller as a result of the Buyer’s breach of any of the terms of this Contract, in particular, without limitation, a breach of Articles 8 and 10 provisions.
8. INTELLECTUAL PROPERTY
8.1. The Buyer acknowledges that any Intellectual Property Rights, used or subsisting for or in connection with the Product(s), are and shall remain the property of the Seller, and the Buyer shall never in any way question or dispute the Seller’s ownership thereof.
9. SURVIVAL OF PROVISIONS
9.1. The following provisions of the Contract shall survive the termination of this Contract: Sections 7, 8, 10 and all other provisions of this Contract that by their nature extend beyond the termination of this Contract.
10. CONFIDENTIALITY
10.1. Unless otherwise agreed to in advance, in writing, by the disclosing Party or except as expressly permitted by this Contract, the receiving Party shall not, except as required by law or court order, use Confidential Information of the disclosing Party or disclose it to any third party. The receiving Party may disclose Confidential Information of the disclosing Party only to those of his employees, contractors or professional advisors who need to know such information. In addition, prior to any disclosure of such Confidential Information to any such employee, contractor or professional advisors such employee, contractor or professional advisors shall be made aware of the confidential nature of the Confidential Information and shall execute, or shall already be bound by, a non-disclosure Contract containing terms and conditions consistent with the terms and conditions of this Contract save in the case of professional advisors bound by a legal duty of confidence. In any event, the receiving Party shall be responsible for any breach of the terms and conditions of this Contract by any of his employees, contractors or professional advisors. The receiving Party shall use the same degree of care to avoid disclosure of the disclosing Party’s Confidential Information as the receiving Party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
10.2. The Buyer acknowledges that the Product(s) are the exclusive property of the Seller and shall not be used or disclosed without the express written consent of the Seller.
10.3. The Buyer shall keep strictly confidential the identity of the Seller from any third parties. The Seller’s identity may be revealed to any third parties only with prior written consent of the Seller.
11. Force Majeure
11.1. Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder. Dates or times by which each party is required to render performance under these Terms and Conditions shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.
12. GOOD FAITH AND FAIR DEALING
12.1. In carrying out their obligations under this Contract the Parties shall act in accordance with good faith and fair dealing.
12.2. The notion of fair dealing includes, but is not limited to, prohibition to the Buyer to resell the Product(s) to any third parties and to use the Product(s) for unlawful acts. In case of breach of this provision all liability arising of such behavior shall be upon the Buyer.
13. Entire Agreement
13.1. The Contracts, incorporating these Terms and Conditions, constitute the entire agreement between the parties with respect to the subject matter thereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written.
14. LAW AND JURISDICTION
14.1. This Contract and any dispute or claim arising out of or in connection with it shall be governed by and be construed in all respects in accordance with the law of the Republic of Lithuania and all disputes or claims arising out of or relating to this Contract shall be subject to the jurisdiction of the Republic of Lithuania.
15. NO RE-EXPORT TO RUSSIA and BELARUS
15.1. The Buyer shall not sell, export or re-export, directly or indirectly, to the Russian Federation/Belarus or for use in the Russian Federation/Belarus any Product(s) supplied under or in connection with this Agreement.
15.2. The Buyer shall undertake its best efforts to ensure that the purpose of paragraph (15.1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.
15.3. The Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (15.1).
15.4. Any violation of paragraphs (15.1), (15.2) or (15.3) shall constitute a material breach of an essential element of this Agreement, and the Seller shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of this Agreement; and (ii) a penalty of 100% of the total value of this Agreement or price of the Product(s) exported, whichever is higher.
15.5. The Buyer shall immediately inform the Seller about any problems in applying paragraphs (15.1), (15.2) or (15.3), including any relevant activities by third parties that could frustrate the purpose of paragraph (15.1). The Buyer shall make available to the Seller information concerning compliance with the obligations under paragraph (15.1), (15.2) and (15.3) within two weeks of the simple request of such information.
15.6. The Buyer has been informed that a decision of the Strategic Goods Licensing Commission may initiate a physical inspection of the exported goods considering potential risks, and an obligation to provide the Strategic Goods Licensing Commission with information on the resale of the goods purchased from the exporter and their end-users.