General Terms & Conditions
1. SCOPE AND APPLICATION
1.1 These General Terms and Conditions (the “GTC”) apply to agreements between Epishine
AB, reg. no. 559070-0422 (“Epishine”) and customer (“Customer”) that purchase
equipment, components, spare parts, material, hardware, software and other objects (tangibleor intangible) (“Products”) from Epishine.
1.2 The GTCs constitute an appendix and integral part of quotation or order confirmation
from Epishine and/or separate written agreement concluded between Epishine and
Customer. Such quotation, order confirmation or separate written agreement and their
appendices are hereinafter referred to as “Agreement”.
1.3 In the event of discrepancies between these GTCs and quotation, order confirmation from
Epishine or separate written agreement, the terms of the latter shall prevail.
1.4 The GTCs preclude the application of any purchasing terms or other general terms and
conditions of the Customer.
All orders are subject to acceptance by Epishine and for the avoidance of doubt no obligation to supply Products shall be deemed to exist prior to an order having been duly confirmed by
Epishine in writing.
3. DELIVERY, ETC.
3.1 Unless a written agreement to the contrary, Products shall be delivered Ex Works
(Incoterms 2020) Epishine’s premises in Linköping or such other location as provided for
in the Agreement.
3.2 Epishine shall remain the owner of Products until payment in full has been received by
3.3 Provided that prepayment has not been received, Epishine is entitled to withhold
performance if a well-founded reason to question the Customer’s ability to pay for Products or development services related thereto, as applicable, exists. Epishine shall at any time be entitled to postpone or cancel shipment of Products until Customer has fulfilled its payment obligations for Products previously delivered. The right to withhold performance shall not apply in the event satisfactory security has been granted by the Customer.
3.4 Epishine shall subject to Article 9 (Force Majeure) without delay notify the Customer in the event that delivery of Products may be delayed.
3.5 Provided an express provision in the order confirmation or separate written agreement to such effect and subject further to Section 3.6 below, the Customer may be entitled to damages due to delay.
3.6 The Customer shall in the event of delay exceeding four (4) calendar weeks be entitled to
terminate the Agreement by giving written notice thereof to Epishine. In the event the
Customer does not terminate the Agreement, the Customer shall in the event of delay
exceeding four (4) calendar weeks be entitled to damages for by the Customer proved damage incurred after the four weeks period. Any such damages shall per week be subject to a cap of one (1) percent of the price for the Products, up to an aggregated cap of five (5) percent of the purchase price for the Products subject to delay.
3.7 Damages and termination according to Section 3.6 shall for the avoidance of doubt be
the exclusive remedy for delay.
4. PRICE AND COSTS
4.1 The Purchaser shall pay to Epishine the price or fees agreed upon without any set-off, deduction or counterclaim.
4.2 Unless otherwise stipulated in the Agreement, a payment term of ten (10) days
shall apply counted from the date of invoice. Invoice may be issued per the date on which the
Product is delivered or loaded for transport to the Customer.
4.3 All prices, fees and charges are exclusive of value added tax and other additional taxes and charges.
4.4 If the Customer should fail to make payment in full to Epishine, Epishine shall be entitled to claim interest on the sum overdue at the rate of eighteen (18) per cent per annum until payment is made.
4.5 Epishine is entitled to adjust the price if, before the delivery date, there are outside
Epishine’s control (i) any material and unforeseen changes of duties, taxes or other governmental charges, (ii) currency fluctuations USD/EUR/SEK, as applicable, in excess of ten percent compared to order confirmation date or (iii) increases in raw material costs which have a direct impact on the production costs for Epishine. Epishine shall inform the Customer
without delay of circumstances which may give raise to price adjustments according to this Section 4.5.
4.6 If Epishine incurs additional costs due to variations by the Customer in the scope of Products ordered or circumstances for which the Customer is otherwise responsible, the
Customer shall reimburse Epishine for such additional costs in accordance with the rates
agreed between the parties or in the absence of such agreement, in accordance with Epishine’s from time-to-time applicable price list.
5. LICENSES AND TAXES
The Customer shall be responsible for obtaining any necessary import licenses, certificates of origin or other requisite documents and for paying applicable customs, duties, taxes and
6. LIABILITY AND INDEMNIFICATION
6.1 Epishine’s liability under the Agreement is limited to errors resulting from a deviation from
the agreed specifications or other express requirements set forth in the Agreement and which causes a material incorrect or inadequate result or functioning (hereinafter referred to as “Defect”). Faults or shortcomings attributable to the same circumstances or substantially the same circumstances shall, for the sake of clarity, be considered attributable to one and the same Defect.
6.2 Epishine’s liability is further limited to Defects which appear within a period of twelve
(12) months from the date of delivery of Product. If the Product is used more intensely than agreed, the period shall be reduced proportionately.
6.3 Except for what has been set out in Section 6.1, all warranties (including without limitation
warranties related to fitness for general or particular purpose or warranties on freedom to operate in relation to any project results, as applicable), are hereby excluded. Hence, Section 6.1 does exhaustively regulate Epishine’s liability for defects or deviations.
6.4 Subject to Section 6.5, in the event of a Defect proven by the Customer, Epishine shall, at its own discretion either: (i) deliver new Product, or (ii) perform remedial actions. Such remedial actions shall be performed within a reasonable period (including time necessary to investigate complaints and alleged faults or shortcomings). Remedial actions shall be performed at Epishine’s premises in Linköping, or at any other location which Epishine may
choose. Transportation costs shall be borne by the Customer.
6.5 In the event of an erroneous complaint, the Customer shall pay compensation to Epishine
for work performed and costs incurred.
6.6 Epishine shall not be liable towards the Customer for any damage to person or property
or for any consequential or indirect damage or loss, including but not limited to loss of profit,
loss of revenue, loss of data, loss of goodwill or loss of other economic advantage. Epishine
shall neither be liable for any cost, loss or damage which is the result of any material
provided by the Customer or a consequence of Epishine having performed work in accordance with the Agreement or the Customer’s instructions.
6.7 Epishine shall be liable to pay damages for damage incurred only if caused by gross
negligence or intent by Epishine. Epishine’s liability for damages whether arising in contract, tort, by negligence or otherwise shall be limited to a maximum amount equivalent to fifteen (15) per cent of the purchase price for the defective Product.
6.8 Epishine is not responsible for failure to meet a requirement, if the failure is caused by:
(i) any modification by Customer without Epishine’s written consent; (ii) circumstances
outside Epishine’s area of responsibility such as failure of communications or circumstances
which relate to network and infrastructure or other products or services from third parties which are procured directly from a third party by Customer; (iii) normal wear and tear; (iv)
faulty maintenance or incorrect installation on the part of the Customer; (v) any circumstance
referred to as Force Majeure; or (vi) other use by the Customer contrary to the Agreement
(including instructions set forth in operation manuals, etc.).
6.9 If the Customer becomes aware or should reasonable have become aware of a breach of
the Agreement which may result in a claim, it shall inform Epishine in writing within thirty
(30) days. If the Customer does not inform Epishine within the stipulated period, it shall
lose its right to claim compensation or assert any other remedy for that particular breach.
6.10 If components or software from a third party are included in Epishine’s delivery, the
third party’s special provisions with respect to such products or software shall take precedence, as applicable. Epishine shall have no liability due to the Customer’s use contrary to the third party’s special provisions.
6.11 The Customer hereby agrees to indemnify, defend and hold harmless Epishine, from all
cost, loss or damage arising out of or related to any breach of this Agreement by the Customer or resulting from any suit or action of any third party against Epishine resulting from Epishine having performed work in accordance with the Customer’s instructions.
6.12 This Article 6 does exhaustively regulate Epishine’s liability and Customer’s remedies
related to Defect.
7. SECRECY AND NON-USE
7.1 During the term of this Agreement and thereafter, any technical, commercial or other
information of a confidential nature disclosed by either Party to the other Party or matters
arising out of this Agreement, including the content of the Agreement and also including
possible arbitral proceedings and information disclosed during the course of such
proceedings, shall be treated as strictly confidential and the Parties shall use such information solely for the purposes of this Agreement and shall not, without the prior written consent of the other Party, which may be withheld for any reason, pass it on to any person except to those of the Party’s employees, consultants, subcontractors or other intermediaries, as the case may be, who are themselves bound by equivalent obligations of secrecy and non-use in respect thereof. The Parties shall take all necessary precautions to
prevent an unauthorized disclosure of technical, commercial or other information of a confidential nature by employees, consultants, subcontractors or other intermediaries.
7.2 The secrecy undertakings according to Section 7.1 shall not apply to information which
a party is able to demonstrate is public or becomes public in integrated form other than
through breach of the Agreement by the party.
8. IPR, ETC.
8.1 The Customer recognizes Epishine’s exclusive rights and ownership to Epishine’s intellectual property rights (whether or not perfected, registered or unregistered now existing or hereafter filed, issued, or acquired) and know-how and any variations or derivatives therefrom including but not limited to any developments, improvements, changes, amendments or inventions, including results generated under the Agreement, regardless of whether it may be protected under intellectual property law or not. Epishine shall have the exclusive right (but no obligation) to apply for registration or protection in relation to any such development, improvement, change, amendment, invention or result. To the extent required, the Customer shall assist Epishine as may be reasonably required in filings and prosecuting of any intellectual property right in order to assign and convey to Epishine the sole and exclusive rights, title and interest according to this Section 8.1.
8.2 The Customer agrees that it shall at no time itself or through other party, use, copy or
reproduce any of Epishine’s intellectual property rights or know-how other than as
expressly permitted according to the Agreement. The Customer agrees and undertakes that all employees or other third parties will become familiar with and will strictly comply with the aforementioned and other provisions in this Article 8 in order to protect Epishine’s intellectual property rights or know-how.
8.3 Except as expressly set out in the Agreement, no licences are granted to the
Customer. Any license granted is nonexclusive, limited to the Customer’s own use in
conjunction with delivered Product, nontransferrable, limited to the term specified in the
Agreement and granted on an “as is” basis. No obligations for Epishine to provide updates or
upgrades shall apply unless otherwise agreed in writing.
8.4 The Customer will promptly advise Epishine in writing of any notice or claim of
infringement of any third-party intellectual property rights related to the Products. The Customer shall not make any admission of liability, agreement or compromise in relation to the claim without Epishine’s prior written consent.
9. FORCE MAJEURE
9.1 Epishine shall be exempt from liability for failure to fulfil an obligation where such failure
is the result of circumstances beyond the reasonable control of Epishine, which prevent or impede performance (“Force Majeure”), until such obstacle has been removed.
9.2 Circumstances constituting Force Majeure shall include, but not be limited to, shortage,
difficulties and disruptions on the labour market (including conflict measures such as strike or
lockout), disruption to communications or networks, failure or breakdown of equipment,
new or amended legislation, acts of authorities, request or injunction from a public authority
after the conclusion of the Agreement, epidemics or pandemics, act of war, terrorism, sabotage, trade sanction, fault or delay in deliveries from subcontractors or subsuppliers
caused by any of the aforementioned circumstances or other circumstance or
conditions that are beyond the reasonable control of Epishine.
9.3 Notice of a Force Majeure event and the cessation of such event shall be given without
9.4 The party affected by a Force Majeure event shall exercise all reasonable efforts to mitigate or limit the consequences of non-performance due to such event.
10.1 Customer may not transfer or assign, in whole or in part, its rights or obligations under
the Agreement without the prior written consent of Epishine. Epishine shall be entitled to assign the Agreement to an affiliate or a third party or transfer or pledge the right to receive payment under the Agreement.
10.2 No modifications, amendments or alterations of the Agreement will be valid or
binding for a party, except if made in writing (containing a specific reference to the
Agreement) and signed on behalf of such party.
10.3 The Agreement sets out the entire understanding of the parties with respect to the
subject matter of the Agreement.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 The Agreement shall be governed by and construed in accordance with the substantive
laws of Sweden.
11.2 Any dispute, controversy or claim arising out of or in connection with the 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”).
11.3 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 Linköping, Sweden. The language to be used in the arbitral proceedings
shall be Swedish.
11.4 Notwithstanding Section 11.2 and 11.3, Epishine may in relation to a claim for payment
which have arisen, or which may arise out of or in connection with the Agreement, take legal
actions at the District Court of Linköping or, in relation to uncontested claims, submit an
application to the relevant enforcement agency.