Terms of Service.
1. Definitions.
These terms and conditions of sale (“Terms and Conditions”) shall govern the sale and delivery of goods (including spare parts) (“Goods”) and/or services (“Services”) supplied by AVOLITA to the person who purchases the Goods and/or Services from AVOLITA (the “Buyer”). The Buyer accepts the application of these Terms and Conditions shall govern the contract between AVOLITA and the Buyer for the sale and purchase of Goods and/or Services (“Contract”) to the exclusion of any other terms and conditions of the Buyer.
2. Offer; Acceptance.
A quotation (“Offer”) issued by AVOLITA is valid for 10 (ten) calendar days from the issue. The Order constitutes acceptance by the Buyer to purchase the Goods and/or Services in accordance with these Terms and Conditions. An Order issued by the Buyer shall be deemed accepted by AVOLITA only after written confirmation of acceptance. Any amendment to the quotation or these Terms&Conditions shall only be valid if accepted in writing by a duly authorized representative of AVOLITA prior to delivery.
An Order will only be processed by AVOLITA after it has received all necessary information as specified by AVOLITA (including without limitation advance payment details, letter of credit, and delivery information (as applicable)).
By order of priority, the Order confirmation, the Order and the Offer together with all attachments, exhibits, and supplements constitute the entire agreement between the Buyer and AVOLITA and may only be modified by a written amendment as agreed between the parties. It is however acknowledged and agreed by the Buyer that AVOLITA can make reasonable changes to drawings, technical or functional specifications or descriptions of the Goods and/or Services provided those changes do not materially alter the published functionality or specification of the Goods and/or Services.
Information and data contained in data sheets, brochures and other advertising material published by AVOLITA serve only as guidelines to give an approximate idea of the Goods and/or Services described in them and are not part of any Contract formed between AVOLITA and the Buyer.
Specific quotations issued by AVOLITA to the Buyer are confidential and shall not be disclosed to any third party other than as required to perform the Buyer’s obligations under the Contract.
3. Delivery; Modification of Delivery Terms; Damages; Return
Delivery dates or times quoted are approximate and for information purpose only. Time of delivery is not of the essence.
AVOLITA may deliver the Goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Buyer to cancel any other installment.
Unless otherwise stated, Goods will be packaged for transportation in AVOLITA’s standard packaging.
If the Buyer is notified by AVOLITA that the Goods are ready for shipment and there is an unreasonable delay in shipment due to the Buyer’s failure (such as to provide adequate shipping instructions), the date of delivery shall be treated as the date of shipment for payment purposes, and delivered Goods shall be held at the Buyer’s risk. In such circumstances AVOLITA shall store Goods until shipment occurs and charge the Buyer for all related costs and expenses (including insurance).
The Buyer shall inspect Goods delivered within five (5) Working Days after the date of delivery and within this period of time the Buyer shall send AVOLITA a written notice rejecting the Goods, specifying in detail any part of the Goods that are missing, damaged, or do not conform to the specification and/or Order for the Goods. Failure by the Buyer to send such a written notice of rejection shall, if any such defect is visible during regular inspection, constitute a waiver of the Buyer’s claims for all defects that should be visible on reasonable inspection. Any virtual goods (software, firmware, pin codes etc.) cannot been refunded or returned once received by buyer. Hardware returns are subject of 15% restocking fee.
4. Installation; start-up
If the Order comprises installation and start-up services, the Buyer shall be in charge of and responsible for proper site preparation and clean-up. AVOLITA may in some cases recommend a third party service provider for site preparation. However, AVOLITA is not responsible for such third party services and resources.
5. Shipping, Transfer of Risk and Transfer of Title
Delivery of the Goods will be made ex-works (as defined in INCOTERMS 2010).
The risk of damage to or loss of the Goods shall pass to the Buyer on delivery or deemed delivery of the Goods. Transfer of title shall pass to Buyer on full payment (in cash or cleared funds) for the Goods.
Until such time as the Buyer has paid the purchase price in full for the Goods and any other amount owing to AVOLITA, the Buyer shall keep the Goods safe, insured, identifiable and separate from all other goods in its possession (save that this shall not prevent the Buyer from using or reselling the Goods in the ordinary course of its business).
In case of shipments by a carrier selected by AVOLITA, the Buyer shall record on the bill of delivery any visible defects due to transportation and inform AVOLITA thereof within 48 hours of delivery. Failure to do so shall constitute waiver of the Buyer’s claim for defects arising during transportation.
6. Pricing, Invoicing; Payment Conditions.
Unless other terms have been expressly stated by AVOLITA in writing, AVOLITA prices: (i) are ex-works; (ii) do not include customs duties or any domestic or foreign sales, value added tax (“VAT”); (iii) are valid for 10 (ten) days from the proposal or quotation date; and (iv) do not include costs for installation. All quoted prices are subject to correction for clerical errors. Unless otherwise noted on the Order, the payment terms shall be 7 (seven) business days from the date of invoice. Payment shall be made in EURO and payment shall be deemed effected when cleared funds are received in AVOLITA account as notified to the Buyer. Pro-rata payments shall become due on delivery of partial shipments of Goods or partial delivery of Services. Time of payment is of the essence.
If any sum payable by the Buyer under a Contract is not paid when due, then the Buyer shall pay interest on the overdue amount at the interest rate applied by the European Central Bank to its most recent main refinancing operation plus eight percentage points. Such interest rate shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
In addition, AVOLITA is entitled to obtain from the Buyer a fixed sum of EUR 35 (thirty five) per delayed invoice for the recovery costs incurred through the Buyer’s late payment.
All payments to be made by the Buyer shall be made in full without any set-off, and without any deduction or withholding for or on account of any counterclaim.
7. Warranties; Warranty Period.
Unless otherwise stated, for a period of two years from the date of invoice for mechanical tools, and one year for electronic devices(except cables), AVOLITA warrants the Goods to be free from defects in material and workmanship, and the Services performed by AVOLITA to be in accordance with the specifications of AVOLITA quotation and or proposal.
If within such period it shall be proven to AVOLITA reasonable satisfaction that any Goods are defective or any Services do not conform to the applicable specification, such Goods shall, at AVOLITA option, be repaired or replaced and such Services re-performed or a substitute obtained.
Title to Goods that are returned shall transfer to AVOLITA. Replacement parts and/or components shall be covered for the remainder of the initial warranty period for the Goods, or three months from the date of delivery of replacement Goods, whichever is the longer.
THIS WARRANTY SHALL NOT APPLY TO ANY LOSS OR DAMAGE RESULTING FROM: (i) NORMAL WEAR AND TEAR; (ii) ALTERATION, MISUSE, ABUSE, OR IMPROPER INSTALLATION, OPERATION OR MAINTENANCE BY THE BUYER OR A THIRD PARTY; (iii) ACCIDENT, FIRE, FLOOD, OR ACTS OF GOD; OR (iv) INACCURATE OR INCOMPLETE INFORMATION OR DATA SUPPLIED TO AVOLITA.
EXCEPT AS PROVIDED IN THESE TERMS AND CONDITIONS, ALL OTHER WARRANTIES, CONDITIONS, TERMS OR REMEDIES ARE TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THIS CONTRACT.
8. Liability.
Nothing in these Terms and Conditions shall limit or exclude AVOLITA liability for:
(i) death or personal injury; or
(ii) fraud or fraudulent misrepresentation; or
(iii) defective products under the consumer protection regulation; or
(iv) any matter which it would be unlawful for AVOLITA to exclude or restrict liability.
AVOLITA SHALL NOT BE LIABLE TO THE BUYER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, ARISING OUT OF OR RELATED TO AN ORDER FOR ANY LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT), INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES. AVOLITA TOTAL LIABILITY TO THE BUYER SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS AND/OR SERVICES PAID BY THE BUYER FOR SUCH ORDER.
9. Patents and Other Intellectual Property Rights; Third Party Claims.
All of AVOLITA intellectual property rights including trademarks know-how, trade secrets, drawings, whether patentable or not (“Intellectual Property”), arising out of or relating to the Goods and/or Services performed and information relating to price structure, specifications, technical, functional and scientific information shall remain exclusively vested in AVOLITA.
The Buyer shall in no event modify, reverse engineer, de-compile or disassemble any of the Goods.
If notified promptly by the Buyer in writing of any infringement or alleged infringement of third party intellectual property right in respect of the Goods, AVOLITA shall defend or may at any time settle, at AVOLITA option, any suit or proceeding alleging that any Goods infringe any regulation in the country of destination, provided the country of destination was clearly indicated in the Order. The Buyer shall provide such assistance and information as reasonably requested by AVOLITA in respect of any such claim (at AVOLITA expense). In the event that it is determined by a court of competent authority that any Goods infringe a third party’s Intellectual Property and the use of the Goods is enjoined, AVOLITA shall, at its option and expense either:
(i) procure for the Buyer the right to continue using the Goods; or
(ii) replace the Goods with non-infringing goods (if possible); or
(iii) modify the Goods so that they become non-infringing; or
(iv) reimburse 75 per cent of the original purchase price to the Buyer.
In any event the total financial liability of AVOLITA to the Buyer for such infringement (such liability shall be subject to the exclusions set out in Clause 8) shall be limited to 100 percent of the original purchase price of the Goods.
The foregoing constitutes the entire liability of AVOLITA and the sole and exclusive remedy of buyer for third party Intellectual Property infringement related to the Goods.
Notwithstanding the foregoing, the above liability of AVOLITA shall not apply to any suit or proceeding alleging infringement resulting from or related to:
(i) AVOLITA’s compliance with the specifications or design of the Buyer; or
(ii) the use of Goods of AVOLITA by the Buyer in combination with a third party’s goods and/or materials and the suit or proceedings alleging infringement relate solely to the goods and/or materials of a third party or this combination.
10. Confidentiality.
All terms of the Order including all technical, financial, commercial and functional elements are to be treated confidentially by the parties. The parties’ obligations under this Clause 10 will continue for a period of three years from the date of disclosure of information covered by this Clause 10. The restrictions and obligations of this Clause will not apply to information that:
(a) is already publicly known at the time of its disclosure; or
(b) after disclosure, becomes publicly known through no fault of the other party; or
(c) a party can establish by written documentation that it was properly in its possession prior to disclosure; or (d) was independently developed by the other party without use of or reference to the disclosing party’s information; or (e) either party is required to disclose by order of a court of competent jurisdiction or regulatory authority.
AVOLITA Sales Terms
11. Force Majeure; Causes beyond AVOLITA control
AVOLITA will not be liable for any delay in performance or non-performance or for any damages, loss or expense suffered by the Buyer by reason of such delay or non-performance if, directly or indirectly, caused by, or in any manner arises from a Force Majeure Event. A Force Majeure Event means any event beyond AVOLITA control which by its nature could not have been foreseen, or if it could have been foreseen was unavoidable, including fire, flood, riots, acts of God, war, governmental interference, embargoes or export/import restrictions, strikes, shortage of labor, materials or supplies, transportation delays, delay or non-performance by AVOLITA suppliers.
12. Termination
If the Buyer commits a material breach of the Contract which cannot be remedied; or commits a material breach of the Contract which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied, being given by AVOLITA, AVOLITA may terminate the Contract immediately by giving written notice to that effect to the Buyer.
AVOLITA may terminate the Contract immediately by giving written notice to that effect to the Buyer if the Buyer becomes Insolvent. “Insolvent” means the Buyer has a receiver, administrator or provisional liquidator appointed or passes a resolution for its winding-up (save for the purpose of a solvent restructuring) or a court makes a winding up order in respect of it or it enters into any composition or arrangement with creditors (other than relating to a solvent restructuring) or it ceases to carry on business or any steps or actions are taken in connection with any of these procedures, or is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction.
13. General
AVOLITA may at any time assign, transfer, charge or subcontract all or any of its rights or obligations under the Contract if required under its business organization.
The Buyer may not assign, transfer, sub-contract or deal in any other manner all or any of its rights or obligations under the Contract without the prior written consent of AVOLITA.
Any notice or other communication given to a party under or in connection with a Contract shall be in writing, addressed to that party at its registered office and shall be delivered personally, sent by post with recorded delivery or commercial overnight delivery service.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions or part-provisions of a Contract shall not be affected.
Unless as expressly provided in these Terms and Conditions no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
14. Governing Law; Venue.
These Terms and Conditions and any non-contractual obligations arising out of or in connection with them shall be construed and interpreted under the laws of the Republic of Lithuania. The parties agree that any action, suit, or proceeding in respect of or arising out of these Terms and Conditions (including in relation to any non-contractual obligations) shall be initiated and prosecuted exclusively by the courts of the Republic of Lithuania.
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