These Owatec General terms and conditions (“Terms and Conditions”) shall be applied to sale and delivery of the water treatment product or products (“Equipment”) by Owatec (“Owatec”) to the company that purchases the Equipment (“Customer”).
A separate sale and delivery agreement (“Delivery Agreement”) shall be concluded between Owatec and the Customer. The terms of the Delivery Agreement shall be primarily applied to the Delivery Agreement between Owatec and the Customer. These Terms and Conditions shall be applied secondarily between Owatec and the Customer in a case there are terms that are not specified in the Delivery Agreement.
Owatec and the Customer are hereinafter referred together as “Parties” and each individually as “Party”.
2. Agreement Formation
The Delivery Agreement shall come into effect between Owatec and the Customer when the Parties have undersigned the Delivery Agreement. Prior to the Delivery Agreement takes effect the Customer has provided Owatec the requirement specification for the water treatment. In that requirement specification the Customer describes in detail the composition and volume of the incoming process / waste water (“Incoming Water”) and the target values for the water that is treated by the Equipment (“Outcoming Water”). Owatec shall offer the Customer a suitable Equipment which fulfils the Customer’s requirement specification if possible and reasonable. Within its offer Owatec shall describe the specification and pricing of the Equipment.
These Terms and Conditions are submitted to the Customer with the offer.
The Equipment might be sold without the service or with the service provided by Owatec. In a case the service is sold with the Equipment the Parties shall conclude a separate service agreement that covers the terms of the service.
3. Definition of the Equipment
The Equipment consists of the units in which the water treatment process shall be performed. In addition to that the Equipment includes the pipelines and other required connections between the units and between the Equipment and the Customer process and other required interfaces such as water supply and power supply. The Equipment shall be specified in detail in the Delivery Agreement.
4. Delivery of the Equipment and Installation site
Owatec shall deliver and install the Equipment at the Customer’s installation site on the date the Parties separately agree and Owatec confirms. The Delivery and installation shall be taken within a reasonable time from the date the Delivery Agreement has come into effect.
If no otherwise defined in the Delivery Agreement the installation of the Equipment includes:
· installing the Equipment ready for use
· connecting the Equipment to the Customer’s power supply
· connecting the Equipment to the Customer’s water supply
· connecting the Equipment to the Customer’s process / waste water supply
· required auxiliaries for the installation
· commissioning and acceptance of the Equipment including report of acceptance
· required training and instructions
The Customer shall ensure:
· the process / waste water supply from the Customer’s industry process and the connection for it is suitable for the Equipment and for the normal operation of the Equipment
· the power supply and the connection for the power is suitable for the Equipment and for the normal operation of the Equipment
· the water supply and the connection for the water is suitable for the Equipment and for the normal operation of the Equipment
· the installation site is prepared for the Equipment
· the installation site grounding is solid, stabile and does not freeze
· there is a proper route for the delivery and installation vehicles to the installation site
The abovementioned requirements for the Equipment installation are defined in detail in the Delivery Agreement.
The environmental requirements for the installation site are defined in the Delivery Agreement.
The installation does not include any structures or other construction work that are needed for example for the groundings of the Equipment or for the cover or safeguards of the installed Equipment. If such structures or construction works outside of the scope of the delivery and installation of the Equipment is needed, the Customer is responsible for them.
5. Invalid Installation Site and Delay in Delivery or Installation
The Customer is responsible to prepare the installation site including all connection interfaces as defined by Owatec. If the installation site or the connections prove to be invalid and not suitable for the Equipment and the confirmed delivery or installation date is delayed because of that, the Customer shall be liable to pay liquidated damages for delay at two (2) percent of the total value of the Equipment or part of the Equipment that was confirmed to be delivered or installed for each commencing week of delay, however, not exceeding ten (10) percent of the value in question. In a case the actual damage caused by the delay exceeds the amount of the liquidated damages, Owatec is entitled to compensatory damages from the Customer corresponding the sum of the actual damages suffered.
6. Commissioning, Acceptance and Hand Over of the Equipment
Owatec shall perform the commissioning for the Equipment. After successful commissioning the Equipment shall be accepted for the operation and shall be handed over to the Customer. The Parties shall undersign an acceptance document at the time of the hand over.
In a case the commissioning has been completed successfully and the Equipment operates as required, the acceptance document shall be undersigned no later than seven (7) days after the completed commissioning. If the Customer does not undersign the acceptance document within seven days in such situation, the acceptance shall be deemed to have been given and the hand over of the Equipment to the Customer is considered fulfilled.
The acceptance document shall be added to the Delivery Agreement.
The price of the Equipment has been defined in the offer. The Parties shall confirm the price of the Equipment in the Delivery Agreement. The price defined in the offer shall not bind Owatec if changes or modifications are to be done to the Equipment after the offer.
The Customer shall pay the price as defined in the Delivery Agreement. Owatec is entitled to charge all the costs that are caused by any additional work, equipment or part of the equipment that are out of the scope of the delivery of the Equipment as described in the Delivery Agreement.
The Customer shall pay the Equipment according to the Owatec’s invoice and the payment terms as defined in the Delivery Agreement.
The payment term is 30 days net. Late payment interest for due but unpaid amounts pursuant to Finnish Interest Act.
9. Ownership and Liability for Risk
The Ownership of the Equipment shall not be transferred from Owatec to the Customer until the price of the Equipment has been completely paid to Owatec. The Customer has no right to assign the Equipment to a third party without a written permission given by Owatec until the ownership of the Equipment has been transferred to the Customer.
The Customer has no right to sell, pawn, rent or any other way assign the Equipment to a third party until the Ownership of the Equipment has been transferred to the Customer.
Liability for risk shall be transferred to the Customer when the Equipment has been delivered to the Customer’s installation site.
The Customer shall undertake to acquire and maintain an insurance that covers all the property damages to the full amount of the Equipment value for the period of the time the Equipment is delivered to the Customer’s installation site and the Equipment is owned by Owatec. The Customer shall designate Owatec as the beneficiary regarding the Equipment. The Customer shall submit a certificate describing the validity of the insurance at the beginning of the first insurance period and upon a separate request to Owatec.[A1]
Owatec warrants that the Equipment is free from the material and manufacturing defects for two years from the hand over. Owatec shall repair or replace the Equipment or part of the Equipment which have been detected as defective by its material or manufacturing during the warranty period. The Warranty does not cover normal wearing of the Equipment or the part of the Equipment or any consumables such as chemicals or other materials used in the Equipment during the operation. The Customer shall notify Owatec of the defects in written within the warranty period.
The warranty does not cover any defects that has been caused by the Customer operation that is not according to the operation instructions given by Owatec or the Customer has not followed the maintenance instruction given by Owatec. If the Customer makes any change or modification to the Equipment the warranty shall not be valid anymore. All changes and modifications to the Equipment shall be done by Owatec so that the Warranty remains in force.
The warranty is valid for two years from the hand over of the Equipment.
11. Intellectual Property Rights
Owatec’s technology is owned by Owatec. No ownership to Owatec’s technology or intellectual property rights pertaining to Owatec’s technology or other intellectual property rights shall be transferred to the Customer or a third party. Owatec shall get the ownership of the data produced by the Equipment and to any innovation that is created by or related to the Equipment. Owatec shall retain title to, ownership of and all intellectual property rights in its possession, no matter if registered or not, and may, at its sole discretion, permit the Customer to make use of and gain an access to Owatec’s own technology and intellectual property rights to the extent deemed necessary by the Customer for use, operation and maintenance of the Equipment as instructed by Owatec.
For the sake of clarity; all intellectual property rights in any modifications, further-developments or improvements pertaining to Owatec’s technology, including but not limited to feedback by Customer, made under or in connection with the Delivery Agreement by either Party or jointly by the Parties, shall be automatically transferred to Owatec at the time of their creation and are exclusively owned by Owatec.
Customer shall retain title to, ownership of and all intellectual property rights in its possession but shall give Owatec an access and right to use Customer’s intellectual property rights to the extent it is necessary by Owatec for the fulfilment of the Delivery Agreement.
12. Confidentiality and Non-Disclosure
Neither Party shall disclose to a third party nor use for any purpose other than for the proper fulfilment of the obligations and responsibilities under the Delivery Agreement and these Terms and Conditions, the information received from the other Party in whatever form under or in connection with the Delivery Agreement or these Terms and Conditions without obtaining the other Party’s written permission. The Parties expressly undertake not to publish or disclose the existence or terms of the Delivery Agreement or these Terms and Conditions to any third party without a prior written consent of the other Party, except as may be required by applicable law.
The foregoing undertaking shall not apply to any such information which:
(a) was in the public domain at the time of the disclosure of such information or later be-came part of the public domain without breach of these confidentiality obligations;
(b) can be shown to be in the possession of the Party receiving confidential information prior to the disclosure;
(c) the receiving Party can demonstrate having received from a third party after the disclosure of such information by the other Party to the receiving Party hereunder, as a matter of right, and having no direct or indirect obligation to the other Party with respect to the same, provided that such third party did not acquire such information directly or indirectly from the other Party; or
(d) can be shown to have been independently developed by personnel of the receiving Party having no access to the information.
Each Party agrees to protect the confidentiality of the information at least with the same care as it exercises in respect of its own confidential information and business secrets but no less than due care. The obligations set forth in this clause 12 shall apply for five years after the effective date of the Delivery Agreement.
The Party shall immediately stop the use of the confidential information or material obtained from the other Party and at request return or destroy such material in a reliable manner including all copies thereof once the agreement in question terminates or when the Party no longer needs such material for the purposes of the agreement in question. The Party is, however, entitled to hold such material which is required by law or order by an authority or copies thereof.
Owatec is entitled to use the Customer as a reference on its web site and in its marketing material.
13. Additional Site Services
The additional site services mean the additional service that is not included into the Delivery Agreement.
If the use, operation or maintenance of the Equipment requires attendance of the Owatec’s personnel on the Customer’s installation site for the purposes of the additional site services, the Customer shall ensure
(a) a safe environment for the Owatec’s personnel on the installation site;
(b) sufficient access for the Owatec’s personnel to the Equipment and installation site.
The site services may include also the actions performed remotely by Owatec.
Owatec shall invoice all the costs regarding the additional site services including but not limited to the work, travelling and materials from the Customer as agreed in the Delivery Agreement. If not otherwise specified Owatec is entitled to invoice the actual costs of the additional site services.
14. Changes and Modifications
In the case of any change or modification required to be done regarding the Equipment as defined in the Delivery Agreement, the Parties shall agree with the execution of the change or modification together. If such change or modification shall have an effect on the Equipment shall the Parties evaluate the impact of such change or modification on the Delivery Agreement. If the change or modification is requested by the Customer or is due to the reason that is attributable to the Customer, Owatec shall be entitled to charge the Customer for the costs of such change or modification.
No change or modification on the Delivery Agreement or any Annex of it is binding unless it is in writing and signed by both Parties.
15. Limitation of Liability
Owatec’s total liability for the Equipment is limited to the price of the Equipment as defined in the Delivery Agreement.
Owatec shall not be liable for any indirect or consequential damages. The indirect or consequential damage includes, but is not limited to, for example:
(a) loss of earning caused to the Customer due to delay, material or manufacturing defect or consequential actions related to them;
(b) damage resulting from an obligation other than or related to the Delivery Agreement;
(c) other damage that is not reasonably foreseeable.
16. Force Majeure
Neither Party shall have any liability to the other Party or be deemed to be in default of this Agreement as a result of any delay or failure in performing its obligation and responsibilities under this Service Agreement to the extent that any such delay or failure arises from causes beyond the control of such Party, including, but not limited to, unexpected acts or regulations of any governmental or supra-national authority, war or national emergency, accident, fire, riot, pandemic, strikes, lock-outs, and industrial disputes.
The Party invoking a force majeure event shall immediately notify the other Party of the nature of such event and its anticipated duration. If the force majeure event does not cease within [three (3)] months, the Party not affected by it shall be entitled to terminate the Agreement [with immediate effect] after consulting the other Party. A written notice of the termination shall be delivered to the affected Party.
Owatec shall be entitled to terminate the Delivery Agreement with immediate effect if the Customer is in substantial breach of the Delivery Agreement or these Terms and Conditions and fails to remedy such breach within thirty (30) days after the receipt of written notice by the injured Party. The substantial breach shall mean, but is not limited to, the Customer fails to perform its payments as defined in the Delivery Agreement.
The Party shall be entitled to terminate the Delivery Agreement or Service Agreement with immediate effect in the event the other Party is declared bankrupt, files for bankruptcy, goes into or is placed in liquidation, enters into arrangement with its creditors or becomes insolvents.
The Customer shall have an obligation to cooperate with Owatec after the termination of the Delivery Agreement in a case the Equipment or part or the Equipment has been already delivered or installed into the Customer’s installation site but the ownership of the Equipment has not been transferred from Owatec to the Customer as defined in the clause 9. The obligation to cooperate becomes valid at the moment of termination and is valid for six (6) months. During that period of time the Customer shall support Owatec with uninstallation, disconnection and moving of the Equipment and other material owned by Owatec.
In a case the Termination is due to the reason that is attributable to the Customer, the Customer shall be obligated to indemnify Owatec for all the costs that has been incurred to Owatec based on the Delivery Agreement but have not been paid already.
The Parties shall not be entitled to assign or delegate any of their rights or obligations under the Delivery Agreement or these Terms and Conditions in whole or in part to any third party without the prior written consent of the other Party. Notwithstanding the aforesaid, Owatec is entitled to assign the Delivery Agreement in whole or in part to its affiliates as well as in connection with a transfer of business or any other corporate transaction including but not limited to divestments and outsourcing. Such assignment by Owatec shall be valid upon notification to the Customer.
The Party shall send all notifications related to the Delivery Agreement or these Terms and Conditions to the Other Part in written and to the address or email address as defined in the Delivery Agreement. The Customer shall ensure that Owatec has the valid and proper contact information of the Customer.
20. Governing Law and Disputes
This Agreement shall be governed by and construed in accordance with the laws of Finland.
Any dispute, controversy or claim arising out of or relating to the Delivery Agreement or these Terms and Conditions, or the breach, termination or validity thereof, that the Parties are not able to negotiate and solve by themselves, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce.
(a) The number of arbitrators shall be one (1).
(b) The seat of arbitration shall be in Oulu, Finland.
(c) The language of the arbitration shall be [Finnish]. However, the evidence may also be presented in [English].
Before entering into the arbitration, the Parties undertake to negotiate and try to solve the dispute, controversy or claim arising out of or relating to the Delivery Agreement or these Terms and Conditions, or the breach, termination or validity.
Notwithstanding the foregoing Owatec shall, at its discretion, have the right to initiate legal proceedings against the Customer in any competent court of law for the purposes of collecting unpaid payments under the Delivery Agreement.
If any part of the Delivery Agreement or these Terms and Conditions is held to be invalid or unenforceable such determination shall not invalidate any other provision of this Delivery Agreement or the Terms and Conditions; however, the Parties hereto shall attempt, through negotiations in good faith, to replace any part of the agreement in question so held to be invalid or unenforceable. The failure of the Parties to reach an agreement on a replacement provision shall not affect the validity of the remaining part of the Delivery Agreement or these Terms and Conditions.
Failure by either Party at any time or times to require performance of any provisions of the Delivery Agreement or these Terms and Conditions shall in no manner affect its right to enforce the same, and the waiver by either Party of any breach of any provision of the agreement in question shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.