GENERAL CONDITIONS OF SALE
1. SCOPE
1.1. These General Conditions of Sale (hereinafter “GCS”) apply in full and exclusively to all commercial transactions pertaining to sale of goods or services (where services are included the GCS terms will be applied mutatis mutandis), including all proposals, offers, orders and/or agreements (hereinafter “Collaboration”), performed by stow US Inc. with registered office at 1700 Park Street, Suite 211, Naperville, IL 60563, USA and any of its affiliates (hereinafter “stow”) with you as its customer (hereinafter “the Customer”), unless expressly agreed otherwise in writing and signed by an authorized representative of the relevant stow entity.
1.2. At the moment stow’s offer is accepted, the Customer is deemed to have received and accepted these GCS unconditionally.
1.3. Any and all terms and other conditions of the Customer are expressly excluded. The Customer explicitly waives its right to invoke any such terms or conditions.
1.4. In case of inconsistencies between the provisions of these GCS and a separate written and fully signed agreement, the provisions of that agreement shall prevail.
1.5. stow reserves the right to alter these GCS at any time. The altered GCS will be published on the stow website and shall be applicable with immediate effect to all Collaborations that have not yet been accepted.
2. OFFERS, ORDERS AND ORDER CONFIRMATIONS
2.1. All offers, including all any and all related and/or supporting documents by stow (hereinafter “Offers”), referred to as an offer or otherwise, are without obligation and do not bind stow as such. An agreement is only concluded between the Parties upon order confirmation, a signed written agreement by an authorized representative of stow and Customer, or as a result of the execution by stow of the agreement.
2.2. It is the responsibility of the Customer to verify the Offer and to, in case of any disagreement, notify stow thereof in order to agree upon the Offer prior to order confirmation by Customer. Upon order confirmation by Customer deliveries or the execution of services will be deemed to have been carried out in accordance with the accepted Offer. stow reserves the right to refuse the order confirmation issued by the Customer in case of non-compliance with the Offer documents.
2.3. Anyone who places an order on behalf of the Customer is considered to be authorized by the Customer and warrants performance by the Customer.
2.4. The Customer guarantees the correctness and completeness of information provided by or on its behalf to stow. If at any later moment in time such information turns out to be incorrect or incomplete, then stow has the right among any other right under these GCS, under any agreement and under the applicable laws and regulations to unilaterally adjust the indicated prices and contractual rights and obligations without the Customer having the right to dissolve the agreement. The foregoing does not require any prior notification.
3. OWNERSHIP AND RIGHT OF USE CONCERNING INFORMATION PROVIDED DURING THE PRECONTRACTUAL PHASE
3.1. All information provided by or on behalf of stow in or in connection with any Offer remains the property of stow and must be returned to stow immediately at its request.
3.2. The information referred to in article 3.1 is and remains at all times confidential and is exclusively intended to be used by the party that requested the information and to whom it was addressed with a view to the evaluation of a possible cooperation. Any other use as well as full or partial disclosure to third parties as well as the full or partial printing or reproduction of this information is prohibited unless and to the extent express prior written consent by stow has been obtained by Customer.
4. DELIVERY
4.1. Unless expressly agreed otherwise in writing and signed by an authorized representative of stow, delivery will take place DDP (Delivery-Duty-Paid) unless legally required otherwise- (location will be where the goods are to be delivered and the works need to take place) Incoterms® 2020.
4.2. The delivery terms stated by stow are merely indicative unless expressly agreed otherwise in writing.
5. COMPLAINTS / DEVIATIONS / LIMITATION OF LIABILITY
5.1. All complaints submitted by the Customer with respect to the goods must state the necessary and detailed information regarding the goods, the alleged defect and any other relevant information so that the complaint can be fully assessed by stow. If the complaint does not state such information, the complaint will be deemed not to have been received and does not in any way entitle to any suspension or interruption of relevant terms.
5.2. Complaints concerning any visible defects are only valid if they were submitted by the Customer in writing on the delivery note and the goods have not been manipulated/altered/used in any way by the Customer or any third party. If no complaint is submitted then the delivery is deemed to have been accepted.
5.3. stow only guarantees hidden defects if it has knowledge of them. That knowledge is not assumed, the Customer has to demonstrate it. The responsibility of stow in such case is in any event limited to a period of 6 months after delivery. Defects that are discovered after delivery are assumed, subject to evidence to the contrary (to be delivered by the Customer), not to have existed at the moment of delivery and/or to be the result of incorrect manipulation by the Customer or any third party.
5.4. stow reserves the right to replace the defective goods as a result of which all further claims of the Customer lapse in case of both visible and invisible defects.
5.5. Returns can only take place with the written approval of stow and does not comprise an admission of fault on the part of stow. Goods must be sent back in their original packaging free from freight and any other costs.
5.6. Notwithstanding anything to the contrary, stow’s liability regarding any Collaboration shall at all times and in any case be limited to proven direct damages within the coverage provided for in its insurance policies and limited to the price of the respective Goods or Services. Moreover and for the avoidance of doubt stow shall not be liable to the Customer under or in connection with these terms and conditions, or any contract or order, for any loss of income, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, or any other type of lucrum cessans or indirect or consequential loss, including third-party claims, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort, breach of statutory duty, indemnity or otherwise. In addition stow shall not be held liable for any direct nor indirect damages claimed by any third party, nor shall Customer forward any such claims to stow.
6. PACKAGING
If stow considers such necessary, the goods will be packaged by stow in accordance with the standard industry practices. In case the Customer has requested specific packaging requirement this needs to be included in the offer and any surcharge will be charged to the Customer.
7. PAYMENT/PRICE
7.1. Unless stated otherwise in writing, all prices are exclusive of VAT and all other taxes, duties, charges and/or levies. These are fully for the account of the Customer.
7.2. Unless stated otherwise in any payment plan agreed between the Parties the invoices are payable in cash within 30 days of the invoice date, without deductions, at stow’s registered office in the currency stated on the invoice, and payment must be made by means of transfer to the bank account stated on the invoice, unless other payment conditions were agreed expressly in writing between the Customer and stow.
7.3. As from the due date, default interest of 12% will be due on the invoice by operation of law and without notice of default. A fixed fee will also be payable by operation of law and without notice of default amounting to 10% of the payable invoice amount subject to a minimum of USD 250 without prejudice to stow’s right to claim a higher compensation subject to evidence of higher losses actually sustained. The Customer shall be liable for all of stow’s costs that have been incurred as a result of the late payment.
7.4. In case of non-payment of an invoice on the due date, all claims against the Customer that have not become due, irrespective of the agreement to which they pertain, become immediately due and payable by operation of law and without notice of default including where payment instalments had been granted.
7.5. If the Customer fails to comply with its obligations, stow reserves the right to suspend or cancel any and all performance in connection with the Collaboration without stow incurring any liability, also in the event a fixed delivery time has been agreed, without losing the right to payment and without prejudice to the higher stipulated compensation and default interest. Such suspension or dissolution takes effect by operation of law and without notice of default and will be notified to the Customer by means of a formal notice. Any advance payments remain stow’s.
7.6. Complaints about invoices must be notified to stow in writing within 8 calendar days after receipt of the invoice.
8. RETENTION OF TITLE AND TRANSFER OF RISK
Title of ownership to the goods or Installation (i.e. final product when delivery and/or works have been completed under the Collaboration) will only transfer to Customer, when the purchase price as agreed between parties has been fully paid by Customer to stow.
All risks connected to the Installation shall transfer to Customer upon signature of the Preliminary Acceptance certificate or first commercial use whichever occurs first. All risks connected to the goods transfer as from the moment of delivery.
In any case and notwithstanding the foregoing all risks connected to the Installation shall in any case be transferred to Customer upon the date the Preliminary Acceptance Test had to occur in case Customer for no good reason refuses to participate to the Preliminary Acceptance Test or does not use the Installation at that date.
9. FORCE MAJEURE
9.1. Neither party (i.e. the affected party) is liable to the other for any delay or failure to perform fully, where such delay or failure is caused by exceptional, unavoidable and reasonably unforeseeable events or circumstances beyond the reasonable control and will of the affected party which render full performance or timely performance by that party impossible.
Subject to the foregoing and without limiting the generality of the foregoing, the following circumstances can constitute a force majeure situation: act of God; pandemic; governmental restrictions or orders; fire; explosion; exceptionally inclement weather; war; riot; civil unrest; terrorism; strike; lock-out; difficulty or increased expense in obtaining workmen, materials or transport; international boycott; embargo, etc.
9.2. Upon the occurrence of such a force majeure event or circumstance, the affected party must promptly inform the other party thereof in writing and both parties will use all reasonable efforts to eliminate the force majeure situation and/or to mitigate the effects thereof on the parties. That party has the right to claim that the content of the agreement will be amended to such an extent that performance remains possible.
9.3. Circumstances that are not to be expected within reason and that are beyond the control of stow include but are not limited to a failure to comply on the part of third parties engaged by stow or a failure to comply on time with their obligations, fires, strikes or interruptions of work or the loss of the materials to be processed, tool breakage, import or trade prohibitions.
9.4. Parties agree that payment obligations can never be delayed or not performed due to force majeure.
10. SUSPENSION AND DISSOLUTION
Either party has the right to terminate the Collaboration with immediate effect and without the need for a court intervention and without prejudice to any other remedy to which it is entitled under applicable law, by written notice sent to the other party, if any of the following events occurs and/or is continuous:
- Customer or stow is declared bankrupt, composes with its creditors, is dissolved or enters into liquidation, is generally unable to pay its debts as they fall due (suspension of payment), becomes involved in any other court or administrative proceedings for the administration of a substantial part of its assets or business or otherwise loses the right to conduct its business;
- Customer or stow commits any material breach of the GCS and fails to remedy such breach within 30 calendar days after receipt of a written notice giving full particulars of such breach and requesting it to be remedied within the said remedy period.
11. SUBCONTRACTING
stow explicitly reserves the right to subcontract part or all of its obligations under the Collaboration.
12. ASSEMBLY & ACCEPTANCE
12.1 In the event assembly or any other installation works or services are included under the Collaboration, the below acceptance procedure will be implemented:
A. Preliminary acceptance procedure
When the Installation has been completed and is ready for use by Customer, stow will request Customer in writing to proceed to Preliminary Acceptance.
Within 5 working days after receipt by Customer of this written request and on the date and time agreed upon between the parties hereto, stow and Customer will inspect the Installation together. The inspection mentioned in the previous paragraph will cover a technical inspection of the Installation. If there are no remarks, stow and Customer will make a certificate related to the Preliminary Acceptance in two originals, each original to be signed by stow and Customer. This certificate will then state that Preliminary Acceptance has been achieved without any remarks. If the inspection of the Installation reveals only minor defects or faults, stow and Customer will make the Preliminary Acceptance certificate, which will then list the said minor defects and faults. stow will remedy the minor defects and faults, recorded on the Preliminary Acceptance certificate within the term mentioned in the Preliminary Acceptance certificate.
Customer can start using the Installation commercially upon signature of the Preliminary Acceptance certificate. The Preliminary Acceptance certificate will indicate the non-acceptance and the reasons of the non-acceptance in case of major defects or faults. In such case the Customer cannot start using the Installation commercially. The Preliminary Acceptance certificate will also mention a new date and time for resolution of outstanding defects or faults.
B. Final acceptance procedure
Upon the mutually agreed moment in time the Installation will be subject to a final inspection whereby a Final Acceptance certificate will be made and signed by stow and Customer.
The final inspection mentioned in paragraph 1, will include an inspection of all items recorded in the Preliminary Acceptance certificate, as well as an inspection of all other defects or faults which have appeared since Preliminary Acceptance has been achieved. Parties agree that where the remaining defects or faults do not impact the intended use, Final Acceptance is deemed to have taken place. If Customer accepts the Installation without any further remarks, both stow and Customer will make the Final Acceptance certificate in two originals, each original to be signed by both Parties. This Final Acceptance certificate will then state that Final Acceptance has been achieved without any further remarks.
If Final Acceptance is not achieved the Final Acceptance certificate will indicate the non-acceptance and the reasons of the non-acceptance. The Final Acceptance certificate will also mention a new date and time for resolution of outstanding defects or faults.
13. INTELLECTUAL PROPERTY
Nothing contained herein will be construed or interpreted as a transfer of ownership, title nor as granting to Customer, expressly or implicitly, a license to use for purposes outside of this Agreement or any other intellectual property right on stow’s trademarks, stow’s intellectual property or any other assets of stow.
stow grants the Customer a revokable, non-transferable license to use, insofar included in stow’s offer, on software necessary to operate the Installation. It is explicitly agreed between the Parties that Customer will not (i) copy, modify, create any derivative work of; or (ii) reverse assemble, decompile, reverse engineer any CONFIDENTIAL INFORMATION or any products or goods delivered by stow to Customer or any of the goods or Installation.
In addition, Customer undertakes to refrain from any act or omission that might negatively affect any of stow’s intellectual property rights and/or reputation and to assume full responsibility and liability in that respect. Therefore, Customer undertakes to inform stow of each actual or possible event, or each actual act or omission of any third party which might negatively affect stow’s said intellectual property rights and/or reputation.
14. ADVICE, DESIGNS AND MATERIALS
14.1. Information and advice provided by stow outside the Offer, Collaboration or any kind of documentation or agreement are merely general in nature and without obligation.
14.2. stow does not accept responsibility for a design elaborated by or on behalf of the Customer or any third party, nor for any advice in connection with such designs. The Customer or the third party as the case may be remains responsible for any suitability of the design, materials or formats and anything related thereto as prescribed by the Customer or that third party.
14.3. stow never accepts any responsibility for parts and/or materials made available by the Customer or any third party.
15. INDEMNIFICATION
15.1. The Customer shall be responsible for and indemnify stow against all claims, proceedings, damages, costs and expenses (including legal fees) of whatever nature arising from or incurred by reason of (1) any breach of the Collaboration or otherwise by the Customer; and (2) any infringement or alleged infringement of any patent, copyright, registered design, trade mark, trade name, know how or other intellectual property right by the reproduction or publication of the items of property received from the Customer which stow, its Affiliates, its customers or its agents may incur or become liable for in any action for such infringement.
15.2.The Customer indemnifies stow against all claims from third parties or any other users who sustained any kind of loss or damage in relation to the Collaboration, the Installation or the goods.
16. CONFIDENTIALITY
All information provided by a Party during the course of the collaboration shall be treated as confidential by the other Party and shall be used by the other Party only for the purposes of the collaboration. The existence and the terms of the collaboration shall be treated as confidential by the Parties.
All rights and information used for the performance of the collaboration may only be disclosed to a third party after having obtained the written consent of the Party that is the owner of the relevant information and provided that a written confidentiality undertaking has been obtained from the third party prior to any disclosure.
Upon termination of the collaboration, each Party shall promptly return to the other Party all documents and materials received from it.
The provisions of this clause shall survive any termination of the collaboration between the Parties for a period of five (5) years from termination.
17. PROCESSING OF PERSONAL DATA
stow’s processing of personal data is subject to the provisions of a separate Privacy Statement, which can be consulted on the stow website https://www.stow-group.com/en/privacy-policy.
18. WARRANTY
stow warrants that the Installation and Goods will:
(i) be complete, of satisfactory quality and fit for the purpose set out in the relevant order or agreement;
(ii) be free from any (visible or hidden) defects in design, material and workmanship;
(iii) be free from liens or encumbrances of title;
(iv) comply with all applicable international, national and local laws, rules, standards, requirements and regulations and common industry safety and quality standards applicable to the Installation.
stow warrants, for a period of 12 months as of the Preliminary acceptance of the Installation or as of the moment the Customer commercially uses the Installation whichever is the earliest, the technical functionality as described in the offer by stow.
From this warranty is expressly excluded:
- any warranty not expressly stated herein;
- wear and tear;
- any possible visible defects which are deemed to be accepted upon Preliminary Acceptance of the Installation;
- any consequences of usage that violates the usage guidelines or manual;
- in general the warranty period will deemed to have ended in case of maintenance or- intervention not executed or authorized by stow.
The warranty terms stated above shall commence upon Preliminary Acceptance or Customer’s first commercial use of the Installation, whichever occurs first. It does not reset in case spare parts being used or repairs being made.
19. MISCELLANEOUS PROVISIONS
19.1. These GCS and the rights and obligations that arise therefrom can be transferred to third parties by stow, whereafter stow is released from further compliance with its obligations. Customer cannot assign any of its rights or obligations under the Collaboration to any third party without the prior written consent of stow.
19.2. Any provision of these GCS that is prohibited, illegal, invalid, or unenforceable does not affect the validity, legality, enforceability of any other provision of the agreement. The parties will negotiate in good faith to replace the prohibited, illegal, invalid or unenforceable provision by a legal, valid and enforceable provision that reflects, as nearly as possible, the rights and obligations contained in the provision to be replaced.
19.3. These GCS constitute the entire agreement between the Parties with respect to the same subject, with the exception of existing, specific written agreements between Customer and stow. No amendment to or variation of the GCS is valid unless made in writing and signed by the Parties hereto.
19.4. stow’s failure to claim strict compliance with the provisions of these GCS will not be considered to be any waiver or rejection thereof.
19.5. The Customer will perform purchases in its own name and for its own account and it will implement these GCS as an independent trader towards stow. These GCS do not create an association, partnership or joint venture between stow and the Customer.
19.6. The Customer agrees to comply with stow’s Code of Conduct (which is available on the website of stow and can be provided upon request), all applicable customs laws and regulations as well as with the applicable environmental, health and/or safety legislation or regulations during its performances under these GCS.
19.7. Each party will bear all costs and expenses (including the fees of its own legal and other counsels) which it has incurred in connection with the Collaboration.
20. GOVERNING LAW – JURISDICTION
20.1. These GCS and the commercial transactions concluded between stow and the Customer within the framework thereof shall be governed by and construed in accordance with the laws of the State of Quebec, with exclusion of the Vienna Sales Convention CISG).
20.2. In the event of a dispute arising in connection with the interpretation and/or implementation and/or performance of the Agreement, which cannot be settled by amicable arrangements between the parties hereto, the dispute may be submitted to the jurisdiction of the competent courts of Quebec (the United States of America).