Terms & Conditions
SPECIAL TERMS AND CONDITIONS FOR TECHNICAL SERVICES
VERSION 1.3 NOVEMBER 2016
These Terms and Conditions for Technical Services shall apply to all deliveries of technical services (the “Services”) from a Sandvik group company (“Sandvik”) to its customer (the “Buyer”), where reference to these conditions has been made in the applicable agreement. (The applicable agreement and these conditions are hereafter commonly referred to as the “Agreement”). Any inconsistent conditions put forward by the Buyer in order confirmations or otherwise shall be of no effect.
2. Offers and Orders
If an offer or order has been made or given, it is not binding until it has been confirmed in writing and formalized in an Agreement. Unless otherwise stated in the offer, offers are binding thirty (30) days from date of issue.
3. Changes and Cancellation of Orders
Unless otherwise is set out in this Agreement, the Buyer may not change or cancel a confirmed order without the prior written consent of Sandvik. Any testing, inspection or documentation requested by the Buyer after the conclusion of the Agreement shall be for the Buyer’s account unless otherwise expressly agreed.
4. Delivery of the Services
Unless otherwise set out in this Agreement, the Services shall be deemed delivered on the date upon which a final report is delivered to the Buyer. If a delivery time is stated in this Agreement, that period shall, unless otherwise expressly agreed, be deemed to commence on the date of the execution of the Agreement.
5. No Exclusivity
Unless otherwise is explicitly set out in this Agreement, the Services are delivered on a non-exclusive basis.
6. Delivery Delays
If Sandvik or the Buyer finds that it cannot fulfill an obligation under this Agreement which could lead to a delay in the execution of the Services, it shall within a reasonable time give notice to that effect to the other Party, stating: (i) when the fulfillment of such obligation can be expected; and (ii) whether this is likely to affect the delivery date of the Services and, if so, on which date the Services can instead be expected to be delivered. If a notified delay is attributable to Sandvik, and if such delay would cause the Buyer material inconvenience, the Buyer shall have the right to cancel this Agreement, by giving notice in writing thereof to Sandvik. The Buyer shall exercise this right to cancel the Agreement within ten (10) days from receipt of Sandvik’s notice of delay, otherwise the time(s) stated in the notice shall be deemed to be a new agreed time for fulfillment of such obligation respectively a new delivery date. If a notified delay is attributable to the Buyer, Sandvik has the right to extend the delivery time of the Services by a period that is reasonable in consideration of the circumstances. If the delay causes Sandvik material inconvenience, Sandvik shall have the right to cancel this Agreement, by giving notice in writing thereof to the Buyer. Sandvik shall exercise this right to cancel the Agreement within ten (10) days from the receipt of the Buyer’s delay notice, otherwise the time(s) stated in the notice shall be deemed to be a new agreed time for fulfillment of such obligation respectively a new delivery date. If delivery cannot be made at the time originally stipulated for reasons attributable to the Buyer, the Buyer shall nevertheless be liable to fulfill all payment obligations as if delivery had been made. What is set out in this Section 6 constitutes the Parties’ exclusive
rights and obligations in case of delivery delays.
Sandvik shall provide the number and type of reports relating to the Services (the “Deliverables”) as set out in this Agreement, in an appropriate electronic format or as otherwise agreed herein.
8. Delivery Inspection
Upon delivery of the Services, and at least within three (3) months from delivery, the Buyer undertakes to verify whether the Services comply with the ordered type, quality and result. Any failure to do so shall debar the Buyer from claiming Sandvik’s warranty in accordance with Section 10 below.
9. Invoicing and Payment Terms
Sandvik shall be entitled to invoice the Services upon delivery of the Services, via any of its group companies. The Buyer shall communicate any requirements as to the content of the invoice to Sandvik. Upon the Buyer’s failure to do so within one (1) month from the execution of this Agreement, Sandvik shall be entitled to invoice the Services in Sandvik’s standard format. Unless otherwise is expressly set out in this Agreement, invoices shall be paid within thirty (30) days from receipt. Amounts overdue for payment will entitle Sandvik to charge the Buyer default interest in accordance with the Swedish Interest Act (1975:635).
Sandvik warrants that it will perform the Services in accordance with the prerequisites set out in this Agreement, as concerns standards, material specifications and acceptance criteria (the “Prerequisites”). Sandvik does not, however, warrant and disclaims all liability for the selection of the Prerequisites or for ensuring that the Prerequisites are representative or relevant for any final application of the results of the Services or that the Services are fit for the intended purpose. Sandvik further disclaims all liability for any assumptions, estimates, projections or statistical conclusions (hereinafter “Estimates”) made by Sandvik in performing the Services. Such Estimates may involve significant elements of subjective judgement and actual outcome may deviate from simulations as events and circumstances may not occur as predicted. In case the Services, in the Buyer’s opinion, have not been performed in accordance with the Prerequisites (a “Defect”), a warranty claim shall be made in writing, specifying the nature and extent of the Defect. A warranty claim shall be issued to Sandvik within a reasonable time after the Buyer discovered or should have discovered the Defect, and no later than within three (3) months of delivery. If, upon Sandvik’s receipt of a warranty claim, a Defect in the Services can be established for which Sandvik is responsible, Sandvik shall at its own expense and with the promptness demanded by the circumstances, at its own option but after consultation with the Buyer, either re-perform the Services or reduce the price of the Services in proportion to the Defect.
THE WARRANTY CONTAINED IN THIS SECTION 10 IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER REPRESENTATIONS, SPECIFICATIONS, WARRANTIES, AND REMEDIES, EITHER EXPRESS OR IMPLIED, HEREIN OR ELSEWHERE, OR WHICH MIGHT ARISE UNDER LAW OR EQUITY OR CUSTOM OR TRADE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A SPECIFIED OR INTENDED PURPOSE AND NON-INFRINGEMENT.
11. Intellectual Property Rights
Any copyright, patent, patent improvement, design, logo, know-how, trade secret, trademark, trade name, trade dress and any other intellectual property or proprietary rights in the Services (commonly “Intellectual Property Rights”) are the property of Sandvik, its affiliates and its licensors. This Agreement does not transfer any Intellectual Property Rights to the Buyer, and does not entail any right for the Buyer to use the Intellectual Property Rights, other than as expressly set forth below. Subject to Buyer’s compliance with this Agreement, Sandvik grants the Buyer a non-exclusive, world-wide, limited license to (i) make use of the Deliverables for its internal purposes, and for the internal purposes of its group of companies; and (ii) providing the Deliverables (against remuneration or otherwise) to third parties on a case-by-case basis. The aforesaid license does not entitle the Buyer to make any changes in or amendments to the Deliverables (including but not limited to by amending the text of a Deliverable or by removing Sandvik’s trademark), or to make the Deliverables available to the general public, including but not limited to by online publication. The Buyer’s right to make the Deliverables available to a third party (whether to its group companies or to an external third party) shall be subject to the aforesaid license requirements.
Sandvik shall be entitled to engage subcontractors in its performance of the Services. Sandvik is responsible for the acts and omissions of its subcontractors involved in the performance of the Services.
13. Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, IN NO EVENT SHALL SANDVIK BE LIABLE, WHETHER ARISING UNDER PERFORMANCE OR BREACH OF THE AGREEMENT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE, FOR LOSS OF PRODUCTION OR ANTICIPATED PROFITS, NON-OPERATION OR INCREASED EXPENSE OF OPERATION, SERVICE OR BUSINESS INTERRUPTIONS, CLAIMS OF CUSTOMERS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL LOSS OR DAMAGES. FURTHER, SANDVIK’S LIABILITY ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE OR STRICT LIABILITY OR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS CONTRACT, OR FROM ITS PERFORMANCE OR BREACH, SHALL BE LIMITED TO THE PERFORMANCE OF THE SERVICE WHICH PROVED TO BE UNWORKMANLIKE AND DEFECTIVE AND IN NO EVENT SHALL EXCEED THE PRICE OF THE SERVICES PERFORMED. CUSTOMER ACKNOWLEDGES THAT THE PRICE OF THESE SERVICES PERFORMED REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS CONTRACT AND THAT SANDVIK WOULD
NOT ENTER INTO THIS CONTRACT WITHOUT THESE LIMITATIONS OF ITS LIABILITY.
The limitations of liability set out in this Section 13 shall however not apply to Section 14 (Confidentiality) or to costs, losses or damage caused by gross negligence or wilful misconduct.
With the exception of the Deliverables (which may be disclosed in accordance with the terms of Section 11 above), any and all information, material or documentation disclosed by a Party to the other Party, whether orally or set out in writing, in connection with entering into or for the purpose of executing this Agreement shall be deemed “Confidential Information” under this Agreement. The term “Affiliate” refers to any entity which is directly or indirectly controlled by a Party, which directly or indirectly controls a Party hereto or which is under the direct or indirect common control with a Party hereto, and “control” of an entity means the direct or indirect ownership of more than fifty per cent (50%) of the shares or interests entitled to vote for the directors of such entity or equivalent power over the management of such entity, for so long as such entitlement or power exists. As concerns the Confidential Information of the other Party, each Party undertakes (i) to use the Confidential Information only for the purpose of meeting the objectives of this Agreement; (ii) not to disclose the Confidential Information to any third party, save to (a) those of its subcontractors, representatives and Affiliates (as well as any representatives of its Affiliates) who have a need to know such Confidential Information for the purpose of the Party’s execution of this Agreement, or (b) as approved to in advance by the other Party in writing; (iii) to impose a corresponding duty on its subcontractors, representatives and Affiliates (as well as any Affiliates’ representatives) who have been provided Confidential Information; and (iv) to return to the other Party on demand all Confidential Information which was furnished or acquired in written format or, upon the other Party’s demand, to destroy and finally delete such information from any media, and confirm in writing such destruction to the other Party.
The restrictions set out above shall not apply to information which as shown by written records: (i) at the time of disclosure was already published or generally available to the public; (ii) after disclosure is published or becomes generally available to the public other than through breach of this Agreement; (iii) was rightfully acquired from a third party which did not acquire it under pledge of secrecy to the other Party or any of its representatives or Affiliates (or Affiliates’ representatives), and who had good legal right to such information. Neither shall the restrictions set out above apply to disclosure necessary in order to comply with any applicable law, regulation, stock exchange rule or legally binding order of any court, governmental agency or administrative judicial body. In such case, a Party shall, to the extent legally admissible, notify the other Party without delay to enable the other Party to express its opinion on to what extent disclosure can be limited in order to prevent its commercial interests.
15. Right of termination
Each Party shall, without compensation to the other Party, have the right to terminate this Agreement: (i) upon thirty (30) days’ written notice, if the other Party is in breach of any material obligation under this Agreement, and the breaching Party fails to remedy such material breach within such notice period; (ii) immediately upon written notice, if the other Party ceases to carry out its business in the ordinary course, is declared bankrupt, is proved to be insolvent or enters into a composition or similar arrangement with its creditors; (iii) immediately upon written notice if the performance of the other Party’s obligations is delayed by more than three (3) months due to a Force Majeure Event (as defined below).
16. Force Majeure
No Party shall be liable for any failure to perform or any delay in performing any of its obligations under this Agreement if such failure or delay arises out of an event beyond the control of the affected Party, provided that such Party could not reasonably have foreseen such occurrence at the time of entering into this Agreement and could not reasonably have avoided or overcome it or its consequence (a “Force Majeure Event”). A Party wishing to rely on a Force Majeure Event shall, as soon as reasonably possible, notify the other Party of an imminent or actual Force Majeure Event. Such notice shall also include an estimate as to the cessation of the Force Majeure Event and when the performance of the affected obligation can be expected.
A notice of termination, claims of breach of agreement and other formal communications required or permitted under this Agreement shall be given to the respective Party’s contact person, as set out in the Agreement, and shall be deemed to have been given (i) in case of registered letter, five (5) days after the date of mailing; (ii) in case of use of a delivery service, five (5) days after the submission of the notice to the delivery service; and (iii) in case of use of e-mail, according to confirmation by the e-mail server system of the sending Party. A Party may change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee, and the date upon which it will be effective. Such notice of change shall be made in accordance with the provisions of this Section 17.
The Parties confirm that they will act as independent contractors under this Agreement and that no Party has any right or authority in any way to bind the other Party in relation to third parties. Thus, and for avoidance of any doubt, the Agreement shall not operate as or be deemed to create a joint venture, a partnership or any other similar legal relationship between the Parties. Any future modification or supplement to this Agreement shall be made in a written instrument duly signed by the authorized signatories of the respective Party. Should any provision of this Agreement be or become invalid, the legal effectiveness of all remaining provisions shall not be affected thereby. The Parties shall in such event seek to replace invalid provisions by provisions which most closely correspond to the joint intentions and purposes of the Agreement. Any waiver of a right according to this Agreement must be made in a separate written document duly executed by a Party. Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits or obligations under this Agreement without the prior written consent of the other Party. The Agreement shall not be construed more or less strictly against either Party as a result of its participation or not in its preparation and drafting. The Agreement shall be in force during the term set out in the main body of this Agreement. Section 13 (Limitation of Liability), Section 14 (Confidentiality), this Section 18 (Miscellaneous) and Section 19 (Governing Law and Dispute Resolution) shall however survive the expiry or termination of this Agreement.
19. Governing Law and Dispute Resolution
This Agreement shall be governed and construed in all respects in accordance with the substantive laws of Sweden, without regard to its principles of conflicts of laws and the UN Treaty on the International Sale of Goods (CISG) which shall be expressly excluded.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.