01/2022
1. Definitions
In these General Sales Conditions, the following words shall have the following meanings:
| ”Agreement” | means the written agreement between the Parties regarding the delivery of Products, the Confirmation of Order sent by Ensto, all their annexes including written modifications and updates to these documents. |
| ”Confirmation of Order” | means the written confirmation sent by Ensto to the Purchaser that Ensto has received the Purchaser’s Order. |
| ”Ensto” | means Ensto Oy and its subsidiaries. |
| ”Sales Conditions” | mean these general sales conditions of Ensto Oy that are part of the Agreement and applied to all Product deliveries between the Parties. |
| ”in writing” | means communication between the Parties by means of a document signed by both Parties or by letter, email, or another documentable way. |
| ”Offer” or ”Offer Document” | means the written Offer of a Product delivery made by Ensto to the Purchaser. |
| ”Order” | means the Purchaser’s Order by which the Purchaser orders Products from Ensto. |
| ”Parties” | means Ensto and the Purchaser. |
| ”Products” | means the products that Ensto delivers to the Purchaser in accordance with the Agreement. |
| ”Purchaser” | means the purchasing Party who orders Products from Ensto. |
2. Field of Application
These Sales Conditions form part of the Agreement and shall be applicable to all Product deliveries between the Parties. When placing the Order, the Purchaser approves these Sales Conditions referred to in the Offer Document and Agreement. These Sales Conditions are on display and copyable on Ensto webpages and their copy shall be sent to the Purchaser upon request.
3. Order of precedence
In case of conflict the order of precedence of the contract documents shall be the following:
- Agreement and/or Confirmation of Order
- General Sales Conditions
- Product-specific Guarantee Terms
- Ensto’s Standard Guarantee and Liability Terms
The above-mentioned contract documents take precedence over all conflicting documents and conditions.
Should the Purchaser present in their Order a provision which conflicts with these Sales Conditions, these Sales Conditions shall prevail even in case Ensto fails to object to such a provision.
4. Offer and Order
The Offer shall be valid for a period stated therein. Unless otherwise stated, the Offer shall be valid for thirty (30) days from the date of the Offer.
An Order placed in accordance with the Offer and within its validity period and the delivery of a written Confirmation of Order shall be considered as an Agreement between Ensto and the Purchaser. If the Order is not based on an Offer made by Ensto, it shall become binding when Ensto has accepted it and has sent out a written Confirmation of Order to the Purchaser. The delivery time of the Products shall also be confirmed in the Confirmation of Order.
5. Delivery Time and Delay
Unless otherwise explicitly agreed, the Products shall be delivered according to INCOTERMS 2020 FCA -term to the place identified by Ensto. In such a case, the liability for risk is passed from Ensto to the Purchaser when Ensto delivers the Products to the first carrier assigned by the Purchaser.
Ensto ensures that the Products are packed in accordance with generally accepted industry practice and in a way sufficient to ensure the conservation and protection of the Products. If the Products require special packaging, this will be charged separately.
If the Parties, instead of specifying an exact delivery date, have agreed on a period of time during which the delivery shall take place, such a period shall start to run as soon as the Agreement is entered into, and other preconditions are fulfilled. If Ensto anticipates that it will not be able to deliver the Products within the agreed delivery time, it will, when possible, notify the Purchaser thereof in writing without delay, stating the reason for the delay and, if possible, the time when the Products will likely be delivered.
The Purchaser shall be entitled to cancel the Agreement by delivering a written notice to Ensto if the delay is over four (4) weeks, the delay is not due to a force majeure situation as set out in Clause 13, and the delay is of essential importance to the Purchaser. Unless otherwise agreed, Ensto shall not be liable to pay the Purchaser liquidated damages or indemnification for the delay, nor shall Ensto be held responsible for any indirect or consequential damage caused to the Purchaser.
Should the delay be due to a force majeure situation as set out in Clause 13, the Purchaser’s actions or default, or other circumstances attributable to the Purchaser, Ensto shall have the right to extend the delivery time by a period necessary considering all the relevant circumstances of the case. This provision shall apply regardless of whether the reason for the delay occurs before the agreed delivery time or after it.
6. Prices, Invoicing and Payments
Prices offered do not include value added tax. Value added tax shall be added, when necessary, to the total amount of the invoice according to the tax rate valid at the time of the delivery.
The Purchaser shall pay Ensto the purchase price for the delivered Products as set out in the Agreement provided that the invoice fulfills the conditions specified in the Agreement. The invoice shall include at least the following information: name of the deliverer, address and contact information, the Purchaser’s address, date and number of the invoice, specification of delivered Products, price, currency, amount of the value added tax or other tax, value added tax number or other tax identification information, and the agreed terms of payment. The invoices shall be delivered to the invoicing address set out in the Agreement.
Ensto shall have the right to amend prices if, after the Purchaser has placed the Order, changes not attributable to Ensto and that affect the manufacturing costs of the Products, such as significant changes in the prices of raw materials, currency rates, or other factors, occur. Ensto shall also have the right to amend prices in the event of an evident price error. Ensto shall inform the Purchaser of general changes in prices no less than fourteen (14) days prior to the amendment. In case the Purchaser does not approve the amendment, it is entitled to cancel the Order within one (1) week after having received the information of the change in price.
Unless otherwise agreed, the time of payment shall be fourteen (14) days net from the date of the invoice. Regardless of the method of payment, the payment shall be deemed effected only when the payable sum has been irreversibly credited to Ensto’s account. Should the Purchaser default on a payment within the agreed period of time, Ensto shall be entitled to suspend further deliveries without prior notice until the payment has been effected in its entirety. The Purchaser shall be liable to pay an interest on delayed payments for the overdue instalments in accordance with the Interest Act in force. The interest on delayed payments in commercial contracts, as set out in the Interest Act, is eight (8) percentage points higher than the reference rate of the Interest Act valid at each time.
Ensto shall also have the right to require an additional security from the Purchaser and/or switch to advance invoicing if, after entering into the Agreement, changes occur in the Purchaser’s circumstances that have or could have effect on the Purchaser’s financial status, operations, or other factors relevant to the Purchaser’s position.
7. Retention of Title
The title of the Products shall pass to the Purchaser only after the entire purchase price with possible interest on delayed payments is paid to Ensto. The retention of title shall not affect passing of the risk under Clause 5.
The Purchaser shall have the right to use the Products in a customary manner appropriate to their suitable use before the passing of title. Use that is likely to lower the value of the Product more than its customary use shall be prohibited. The Purchaser shall not resell, pledge, use, install, convert, or process the Products until their purchase price, including possible interests on delayed payments, has been paid in full. Nor shall the Purchaser legally dispose of the Products by means of an owner, for example, by assigning or pledging or by establishing other types of rights. A breach of these prohibitions shall entitle Ensto to cancel all orders and terminate the business relationship with the Purchaser with immediate effect and to demand to return the object of the purchase.
8. Product Liability and Duty to Insure
Ensto shall be responsible for ensuring that the Products are manufactured in accordance with applicable mandatory legislation, and when delivered, are free from defects and third-party rights and suitable for the purpose set out in the Agreement. Ensto shall ensure that the delivered Products comply with the Agreement through its ISO9002-based quality system and quality verification actions included therein.
Ensto shall be liable to third parties for personal injuries and damages to property caused by its Products as according to valid legislation and limitations set out in these Sales Conditions. Parties shall immediately inform each other upon receiving information of such an injury, death, or damage.
Purchaser shall inform Ensto of any particular known risks relating to the Products’ properties or their intended use. Furthermore, the Purchaser shall inform Ensto of any existing product liability claims for the Products.
Both Parties shall maintain at their own cost liability, product recall, and product liability insurances covering third party damages. The insurance cover shall be sufficient and up to a level corresponding to customary industry standards. The cover shall be no less than one million (1,000,000.00) euro. The Purchaser shall be liable to present a certificate of the insurance detailing the cover upon a request from Ensto.
Should Ensto have any reason to suspect that the Product may cause a danger to users or third parties, Ensto shall have the right to suspend the deliveries and to recall the Product. In that case, the provisions of force majeure shall apply.
9. Guarantee
The Purchaser shall, within eight (8) days after receipt of the delivery, inform Ensto in writing of any visible defects or deficiencies appeared in the delivery or in the Products that the Purchaser has noticed or should have noticed. If the Purchaser fails to make such a written notice within this period of time, the delivery and the Products shall be deemed as complete and in good condition, and the Purchaser shall no longer invoke such a defect in the delivery or the Product. Should the Product have a defect that was not reasonably detectable at the time of the inspection, the Purchaser has nevertheless a right to make a complaint of such a defect in a reasonable time after it has been noticed.
Ensto issues a guarantee for its Products according to the separate Standard Guarantee and Liability Terms that form part of the Agreement.
In case of special Products or if the Product is otherwise produced according to specifications given by the Purchaser, Ensto shall be liable for that the structure of the Product meets the specifications. Ensto shall not, however, be liable for defects due to material or construction ordered by the Purchaser, nor shall Ensto be liable for the suitability of the Product for its intended use. Ensto’s liability extends only to defects that may arise when the Product is correctly used under conditions for which the Product is intended for as set out in the Agreement. The liability does not cover defects caused by faulty installation or deficient maintenance performed by the Purchaser, alterations made without the prior written consent of Ensto, faulty repairs by the Purchaser, conditions of use deviating from those that informed, or normal wear and tear or deterioration.
The Purchaser shall return to Ensto the Products rejected in inspection of the delivery or replaced or repaired under the guarantee in their original packing, if possible, and at the cost of Ensto. Ensto shall deliver the repaired or replaced Products to the original destination at its own cost.
10. Limitation of Liability
Ensto shall not be liable for damages caused by faulty installation or faulty maintenance unless Ensto itself has made the faulty installation or the faulty maintenance. Ensto shall not be liable for damages caused by inappropriate use of the Product or costs related to the removal of the faulty Product and its reinstallation. Ensto shall not be liable for any indirect or consequential damages and economical losses, such as lost profit, reductions of revenue, or lost goodwill, unless the damage has been caused intentionally or of gross negligence. In addition, limitations of liability contained in the guarantee conditions of the Product shall be applied (see Standard Guarantee and Liability Terms).
11. Material and Tolerances
The material requirements of special Products shall always be specified in the offer request and Order. Ensto is liable for ensuring that the material in delivered Products complies with the agreed specifications. Unless otherwise agreed, tolerances shall be as generally applied by Ensto.
12. Materials and samples supplied by the Purchaser for special Products
Parts supplied by the Purchaser for special Products shall be delivered to Ensto’s factory at the agreed time. As regards serial Products, the number of parts supplied by the Purchaser shall exceed the total number of the Products ordered by five (5) per cent. The Purchaser shall be liable for ensuring that the parts delivered are in accordance with the measures and specifications agreed upon. Furthermore, the Purchaser shall be liable for any additional costs incurred by Ensto due to defective parts that are unsuitable or otherwise deficient.
As for special Products, Ensto shall provide the Purchaser with a sample of the Product before starting serial deliveries if this and the price of the sample have been agreed upon in connection with the Order. The Purchaser shall be liable at one’s earliest convenience to review the sample and notify the revision result to Ensto. After the Purchaser’s approval without remarks, Ensto shall not accept any remarks on the delivered Products if they match the accepted sample.
13. Force Majeure
Ensto shall not be liable to the Purchaser of a delay or damage caused by a force majeure situation beyond Ensto’s control that Ensto could not reasonably have avoided or overcome and that Ensto could not reasonably have foreseen when entering into the Agreement or confirming a single Order.
For example, the following shall be considered as force majeure: war, riot, general strike, natural disaster, fire, epidemic, pandemic or other widespread disease, seizure, currency restrictions, embargo, unusual conditions, new or amended legislation or official regulations, terrorism or other circumstance significant in fact, unusual and beyond the control of the Parties. Delays in the deliveries by the subcontractor that result of a force majeure situation are also regarded as force majeure.
Should the force majeure last over three (3) months, the Parties may, by a mutual decision, terminate the Agreement immediately. Termination of the Agreement shall be made in writing.
Ensto shall, without undue delay, inform the Purchaser of a force majeure and of its termination.
14. Drawings and Technical Specifications
Ensto shall provide the Purchaser with the relevant specifications and drawings related to the installation, use, and maintenance of the Products without additional charge and no later than the date the Products are delivered. Unless otherwise agreed, the Purchaser must be provided with at least one copy of each of these specifications and drawings.
Title to all drawings and technical documents related to Products or their manufacture and delivered to the Purchaser by Ensto before entering into the Agreement or after shall remain vested in Ensto.
The Purchaser shall use the received drawings, technical documents, and other technical information only for the purposes they have been delivered for. Without prior written consent by Ensto, they shall not be used in other ways or copied, duplicated, transmitted, or informed to third parties.
15. Intellectual Property
Ensto holds the exclusive title to all copyrights and industrial rights such as patents, trademarks, rights to utility models, design copyrights, and domain names of the delivered Products. The Purchaser shall agree not to take any measures that could breach the aforementioned rights. These include the prohibition to use, disclose, copy, duplicate, transmit, communicate, or make available to a third party any drawings, samples, technical descriptions, or other knowhow or any other comparable information related to the Products.
Concerning Products manufactured according to Ensto’s specifications, the title to all technical documentation relating to manufacture, testing, and use of the Products shall remain vested in Ensto. The Purchaser shall not without a written consent by Ensto disclose or use any information protected by such industrial rights with a third party.
The Purchaser shall be liable for investigating and informing Ensto whether the special Product to be delivered is protected by a patent, protection of design, or an equivalent restriction. The Purchaser shall compensate Ensto for the damage caused by the infringement of industrial property rights. If a third party initiates proceedings against Ensto in relation to a breach of such industrial rights, the Purchaser shall be liable for the costs and damages thereof. In that case, the Purchaser shall also reimburse Ensto for any fees and other ancillary costs upon a written request by Ensto.
16. Confidentiality
The Parties undertake not to pass on or disclose to third parties any information received from the other Party that is declared confidential or is to be regarded as such and is unpublished information relating to the Party that disclosed the information. The Party receiving confidential information shall use the information only to fulfill the obligations set out in the Agreement.
Confidential shall not be the Parties’ information that
- was verifiably in the possession of the other Party without a breach of confidentiality prior to entering into the Agreement;
- is publicly accessible when entering into the Agreement or becomes later publicly accessible without a breach of confidentiality (the latter as of the moment they become public);
- comes to the attention of the Parties from a third party without a breach of confidentiality;
- is general and public information related to markets and/or clients, and the Party receives it through cooperation related to the Agreement and the fulfillment of the obligations set out in the Agreement;
- the Party has independently developed; or
- the Party must pass on or disclose due to compelling legislation or an order by a public authority.
The Party receiving the confidential information shall immediately cease to use the confidential information received from the disclosing Party when the receiving Party no longer needs the information for the purpose set out in the Agreement. The receiving Party shall return or destroy all confidential information received from the disclosing Party at their request. If the confidential information is not returned or destroyed, it shall remain subject to the Agreement’s confidentiality obligation, but shall no longer be used as of the date of the request.
The confidentiality set out in this Clause shall remain in force also after the termination of the Agreement and is in force as long as the confidential information has, or it may have relevance to the disclosing Party.
17. Cancellation of the Agreement
In case the other Party essentially and repeatedly breaches the terms of the Agreement, and the breaching Party has not remedied the contractual breach within thirty (30) days of the written notice by the offended Party, the Parties shall have a right to cancel the Agreement with a written notice. The written cancellation notice must be delivered to the breaching Party verifiably within fourteen (14) days of the expiration of the aforementioned period of time. The circumstances for which the Agreement is to be cancelled must be specified in the notice.
Furthermore, the Parties shall have the right to cancel the Agreement with a written notice if the other Party is filed for bankruptcy or is declared bankrupt, becomes subject of reorganization proceedings or liquidation, or is confirmed without means in recovery proceedings. The Parties shall have the aforementioned right if the other Party becomes insolvent or its financial status diminishes essentially in relation to the time of concluding the Agreement.
Ensto shall also have the right to cancel the Agreement for productional or technical reasons for which the continuation of the Agreement becomes impossible for Ensto.
The cancellation of the Agreement shall not affect the rights and obligations that the Parties have at the time of conclusion of the Agreement.
18. The Entire Agreement
The Agreement together with its annexes form the Entire Agreement between the Parties related to the delivery of the Products. Upon entry into force, this Agreement shall replace all prior agreements on the matter concluded between the Parties.
19. Changes to the Agreement
All changes to these Sales Conditions or other documents listed in Clause 3 shall be done in writing and confirmed by the official signatures of both Parties.
20. Non-assignment
The Parties shall not assign the Agreement to a third party without a prior written approval of the other Party. However, Ensto shall, without a written consent of the Purchaser, have the right to assign the Agreement or rights and obligations stated therein in part or in whole to another company of Ensto Group or to a third party to which the business referred to in the Agreement is transferred.
21. Waiver of Rights
No right conferred to either Party under law or common practice shall be deemed waived unless an explicit agreement has been concluded or the expression of a waiver has been explicitly given when the circumstances to exercise the right have arisen.
22. Applicable Law and Arbitration
This Agreement is governed by the laws of Finland. However, provisions on choice of law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.
Any dispute, controversy or claim arising out or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce in Helsinki. The number of arbitrators shall be one when the claims and counterclaims resulting of the Agreement without expenses and interests does not exceed five hundred thousand (500,000.00) euros. If five hundred thousand (500,000.00) euros is exceeded, the number of arbitrators shall be three. The language of arbitration shall be Finnish.