General terms and conditions
Nokian Heavy Tyres
1. DEFINITIONS
1.1. The following definitions shall apply to these General Terms of Delivery and to any Agreement:
“Agreement” shall mean a signed document (including its appendices) referring to these General Terms of Delivery or to which these General Terms of Delivery are attached or any other agreement between the Parties concluded as stipulated in section 2.2.
“Buyer” shall mean a Party purchasing the Products.
“Force Majeure Event” shall mean events beyond the control of a Party which occur after the Agreement entered into force and which were not reasonably foreseeable at the time the Agreement entered into force and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the Party concerned. Events of Force Majeure will include (without being limited to) epidemic, pandemic, war, civil unrest, strikes, lockouts and other general labour disputes, acts of government, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, f ire, flood, explosions and general shortages of energy.
“Intellectual Property Rights” shall mean patents (including petty patents and utility models), design patents, and designs (whether or not capable of registration), copyright, trademark, service mark, and any other form of statutory or common law intellectual property protection of any kind; and applications for any of the foregoing including without limitation reissues, divisions, or other continuations thereof, in all jurisdictions, where applicable.
“Party” shall mean either Nokian Tyres or the Buyer.
“Products” shall mean tires, tire sensors, studs and anti-slip devices, or other products developed and manufactured by or for Nokian Tyres. The Products shall be those specified in the Agreement or those agreed between the Parties from time to time.
“Nokian Tyres” shall mean Nokian Tyres plc and any of its affiliate companies.
“Restricted Person” shall mean a person, organization or entity that is: (i) listed on a sanctions list, including but not limited to “Specifically Designated Nationals and Blocked Persons” maintained by OFAC in U.S., “Consolidated List of Financial Sanctions Targets in the UK” maintained by HMT in UK; (ii) located or resident in or incorporated under the laws of a country or territory that is, or whose government is, the target of a country-wide or territory-wide Trade Restriction; (iii) owned or controlled by a Restricted Person; or (iv) otherwise a target of a Trade Restriction.
“Trade Restrictions” shall mean export and import laws, orders, and licenses, embargoes, sanctions of an economic, commercial or financial nature, regulations on sectors subject to restrictions (such as use for military purposes), regulations concerning Restricted Persons and other restrictive measures of similar nature, as existing, amended, supplemented and substituted from time to time, administrated, enacted or enforced by United Nations, United States of America (including OFAC), European Union or any of its member states, countries of European Economic Area, United Kingdom (including HTM), any other competent jurisdiction or any competent authority of the above. Trade Restrictions also include any other restrictions that may have any direct or indirect impact of any nature on Nokian Tyres or its subsidiaries irrespective of the country/government/ authority by which the Trade Restriction is administered, enacted or enforced.
2. ENTRY INTO FORCE OF AGREEMENT
2.1. The Agreement enters into force when signed by both Parties.
2.2. The Agreement enters also into force when the Buyer accepts in writing Nokian Tyres’s tender regarding the delivery of the Products or when Nokian Tyres accepts the Buyer’s purchase order regarding the delivery of the Products in writing or by delivering the Products specified in such purchase order.
2.3. No Buyer ́s terms in Buyer ́s request for tender, purchase order or any other document will form part of the Agreement unless specifically approved in writing by Nokian Tyres. The Buyer expressly waives any right to rely on such terms.
3. PRODUCTS AND SERVICES
3.1. Nokian Tyres reserves the right to apply quantity limits on any purchase order, to reject all or part of a purchase order, and to discontinue or make changes to Products without notice, even if Buyer has already placed a purchase order. Also, even if a purchase order has been accepted, Nokian Tyres may subsequently cancel such purchase order in whole or in part due to product unavailability (including without limitation, any discontinuation of the Product).
3.2. Nokian Tyres may offer ancillary services related to the Products such as mobile applications for tire monitoring. Services are subject to separate terms and conditions with which Buyer undertakes to comply when using the services.
4. DELIVERY
4.1. The delivery term of the Products shall be FCA, premises named by Nokian Tyres (Incoterms 2020), unless otherwise agreed by the Parties.
4.2. The Buyer shall inspect the Products after the delivery. The delivery shall be deemed accepted if the Buyer has not presented Nokian Tyres with a written remark regarding the delivery of the Products within seven (7) days from the delivery date.
4.3. Nokian Tyres shall deliver the Products at the agreed time of delivery. If the time of delivery has not been agreed in writing, Nokian Tyres shall deliver the Products within a reasonable time from the entry into force of the Agreement provided that the Products are available or, if the Products are not available, within a reasonable time after they become available. Even though Nokian Tyres agrees to take all commercially reasonable measures to meet the agreed delivery dates, the Buyer acknowledges and agrees that Nokian Tyres shall not be liable for its failure to meet the agreed delivery dates.
4.4. If Nokian Tyres has outstanding due receivables from the Buyer, Nokian Tyres has the right to refrain from delivering the Products until the Buyer has settled the due payments in full. In such an event, the agreed delivery time will be extended correspondingly.
4.5. Nokian Tyres shall be entitled to make also partial deliveries. irrespective of the country/government/ authority by which the Trade Restriction is administered, enacted or enforced.
5. PRICE AND TERMS OF PAYMENT
5.1. The prices of the Products have been agreed in the Agreement. Unless otherwise agreed in writing, Nokian Tyres’ price list in force at the time of entry into force of the Agreement shall be applied. Nokian Tyres can issue changes to applicable price lists with a prior notice of one (1) moth. Prices do not include any value added or similar taxes, which shall be added to all prices according to the laws and regulations in force at the time of the delivery. All Products shall be invoiced and payments made in Euro currency (EUR).
5.2. When the amount of or basis for taxes or other public payments changes before the delivery of the Products, either due to regulation change or change in the practice, Nokian Tyres has the right to adjust the prices of the Products correspondingly.
5.3. Unless otherwise stipulated by Nokian Tyres in writing, any offer issued by Nokian Tyres to the Buyer is valid for three (3) months from the date of issuance of the offer.
5.4. Unless otherwise agreed in writing, the Products will be invoiced after the date of delivery. Payment shall be due within thirty (30) days of the date of the invoice. The Buyer is obliged to pay eleven and a half (11.5) percent of annual interest on overdue payments beginning from the due date.
5.5. If Nokian Tyres has agreed to grant credit to the Buyer for the payment of the Products, Buyer is upon Nokian Tyres ́ request obliged to provide Nokian Tyres all necessary financial information (including but not limited to financial statements of the company) that is needed to grant the credit and assess the creditworthiness of the Buyer during the credit period. The obligation to provide financial information to Nokian Tyres continues as long as there is any open credit i.e. unpaid receivables from Buyer. For sake of clarity, the granting of any credit is at the sole discretion of Nokian Tyres and subject to a separate
6. TRANSFER OF RISK AND TITLE
6.1. Products delivered shall remain, to the extent permitted by applicable law, the property of Nokian Tyres until the Buyer has paid the price of the Products and the value added or similar taxes related to the respective Products. The Buyer shall give Nokian Tyres all necessary assistance in taking any measures to protect Nokian Tyres’ title to the Products.
6.2. Until the title to the Products passes to the Buyer in accordance with Section 5.1 above, the Buyer shall store the Products at no costs to Nokian Tyres separately from all other products in its possession and mark the Products so that they are clearly identified as Nokian Tyres’ property.
6.3. Notwithstanding the fact that the Products remain the property of Nokian Tyres, the Buyer may sell or use the Products in the ordinary course of the Buyer’s business at full market value for the account of Nokian Tyres. Any such sale or use shall be a sale or use of Nokian Tyres ’s property by the Buyer and the Buyer shall act as the principal when making such sales or dealings. Until the title to the Products passes from Nokian Tyres to the Buyer, the entire proceeds from the sale or other dealings of the Products shall be held in trust for Nokian Tyres and shall not be mixed with other money or paid into any overdrawn bank account of the Buyer and shall be at all times identified as Nokian Tyres’ money. Also, until the title to the Products passes from Nokian Tyres to the Buyer, the Buyer shall assign its outstanding claims arising from the resale of the Products to Nokian Tyres as a security for Nokian Tyres’ claims.
6.4. Until the title to the Products passes from Nokian Tyres to the Buyer, the Buyer shall upon Nokian Tyres ́ request return the delivered and unsold Products to Nokian Tyres. If the Buyer fails to do so, Nokian Tyres may enter upon any premises owned or occupied or controlled by the Buyer where the Products are supposed to be situated and repossess the Products. Upon such repossession, the rights of the Buyer under the Agreement with respect to the Products in question shall terminate.
6.5. The Buyer shall not pledge any of the Products which are still owned by Nokian Tyres. Without prejudice to any other rights of Nokian Tyres, if the Buyer does so, all sums whatsoever owed by the Buyer to Nokian Tyres shall become immediately due and payable.
6.6. The Buyer shall insure and keep insured the Products to their full market value against all risks to the reasonable satisfaction of Nokian Tyres until the date when the title to the Products passes from Nokian Tyres to the Buyer, and shall whenever requested by Nokian Tyres produce a copy of the respective insurance policy. Without prejudice to the other rights of Nokian Tyres, if the Buyer fails to do so, all sums whatsoever owed by the Buyer to Nokian Tyres shall become immediately due and payable.
6.7. Notwithstanding the fact that the title to the Products shall remain with Nokian Tyres in accordance with the above provisions, the risk of damage or loss of the Products shall pass to the Buyer at the following times: (a) in the case the Products are to be delivered at Nokian Tyres ́s premises, at the time when Nokian Tyres notifies the Buyer that the Products are available for collection; or (b) in the case the Products are to be delivered otherwise than at Nokian Tyres ́s premises, at the time determined in the applicable delivery term.
7. WARRANTIES
7.1. Nokian Tyres ́ warranty terms concerning the Products are set out in Nokian Heavy Tyres ́ limited warranty terms valid at the time of the delivery. EXCEPT AS SET FORTH IN SUCH WARRANTY TERMS, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. To the maximum extent permitted by the applicable law, Nokian Tyres shall have no other obligations or liabilities with respect to any possible defect or deficiency in the Products delivered hereunder than as set forth in the above- mentioned warranty terms.
8. LIABILITY AND CLAIMS
8.1. To the extent permitted by the applicable law, under no circumstances shall Nokian Tyres ́ liability under this Agreement exceed the invoice price of any Products with respect to which a claim is made.
8.2. Under no circumstances shall Nokian Tyres be liable under this Agreement for any indirect or consequential damage or loss, including without limitation any increased costs or expenses, or loss of profit, business, contracts, revenues or anticipated savings.
8.3. When Nokian Tyres has expressly agreed with the Buyer on the return of any of the delivered Products to Nokian Tyres, the Buyer assumes full responsibility for ensuring that the Products are placed in Nokian Tyres’ possession. Nokian Tyres shall not accept any liability for any loss of any Products in transit.
8.4. The Buyer acknowledges and agrees to that any data generated by Nokian Tyres ́ digital services regarding the use of Products can be used in processing of claims made by the Buyer towards Nokian Tyres.
9. SPECIFICATIONS AND INTELLECTUAL PROPERTY RIGHTS
9.1. The weights, dimensions, capacities, prices, performance ratings and other data included in catalogues, prospectuses, circulars, advertisements and price lists and other similar information regarding the Products, as expressed in Nokian Tyres ́ general product information, constitute an approximate guide. This data shall not be binding on Nokian Tyres, save to the extent that it is by reference expressly included in the Agreement.
9.2. No right or license is granted under the Agreement to the Buyer under any patent, trademark, copyright, registered design or other Intellectual Property Rights, except for the right to use or resell the Products.
9.3. All Products sold in retail packaging may be resold by the Buyer only in the packaging supplied by Nokian Tyres and in no case may any trademark other than those applied by Nokian Tyres be marked on or applied in relation to the Products.
10. CONFIDENTIALITY
10.1. The Buyer undertakes to keep confidential all terms and conditions of the Agreement and its appendices, as well as all information given on Nokian Tyres’ or its business partners’ operations, products and services and any information regarded as trade secrets of Nokian Tyres. The Buyer shall not (and shall secure that its directors, agents and employees shall not) be entitled at any time without prior written consent of Nokian Tyres to disclose Nokian Tyres’ confidential information to any third party or to use it whether directly or indirectly for other purposes than in accordance with the Agreement. The obligation of confidentiality shall survive the termination of the Agreement and remain in force for five (5) years thereafter.
10.2. The Section 10.1 shall not apply to any information which (i) the receiving Party can prove to have been in its possession at the date of receipt or (ii) which is or becomes public knowledge otherwise than through a breach of an obligation of confidentiality.
11. INTEGRITY AND CODE OF CONDUCT
11.1. The Nokian Tyres’ Code of Conduct applies to the business relationship between the parties (available at Nokian Tyres’ webpages). The Buyer agrees to comply with the principles set out therein, as amended from time to time.
11.2. The Buyer further warrants that the Buyer or any individuals or entities acting for or on behalf of the Buyer have not violated any applicable laws and regulations related to anti-trust and competition, anti-corruption or money laundering and warrants that applicable anti-trust and competition, anti-corruption or money laundering laws and regulations are complied with in all its activities.
12. DATA PRIVACY
12.1. As a part of the cooperation under the Agreement, Nokian Tyres may collect and processes personal data about the representatives of the Buyer. Nokian Tyres processes the personal data in accordance with applicable data protection legislation. More information about for what purposes and how personal data is collected and processed by Nokian Tyres is available in Nokian Tyres’ Privacy Statement, which is available at https://www.nokiantyres.com/privacy-statement/.
12.2. Unless otherwise agreed, the cooperation under the Agreement does not include any processing of personal data by one party on behalf of the other party, or any sharing or disclosure of personal data, and the parties agree that each party is independently responsible for complying with applicable data protection legislation with regard to the personal data they may process.
12.3. If the cooperation under the Agreement would include disclosing personal data from one party to another, but no party processes personal data on behalf of the other party, the original controller of the personal data shall be responsible for ensuring that there is a legal basis for such disclosure.
13. TRADE RESTICTIONS AND IMPORT/EXPORT CONTROLS
13.1. The Buyer warrants that it will comply in all respects with any Trade Restrictions for every Product delivered to the Buyer. The Buyer also assures that other individuals or entities acting for or on behalf of the Buyer comply with the Trade Restrictions.
13.2. The Buyer warrants that neither it nor any other Buyer belonging to same group of companies, nor any owner, beneficial owner, member of their board of directors nor any of their managing director nor any other director, employee, agent or representative or of any member of the group is currently a Restricted Person or have ever been a Restricted Person. The Buyer undertakes to inform Nokian Tyres without delay if any person or Buyer mentioned above shall become subject to a Trade Restriction.
13.3. Accordingly, the Buyer undertakes: a) to obtain, at its own expense, any licenses, shipping documents and authorizations or approvals to export or import the Products as may be required; and b) not to advertise, market, promote, sell, lease or otherwise transfer the purchased Products to Restricted Person or to restricted countries/areas subject to Trade Restriction; and c) not to advertise, market, promote, sell, lease or otherwise transfer the purchased Products for the purpose of using them in restricted sectors, insofar as the transfer is restricted according to a Trade Restriction and insofar as a license or approval has not been obtained; and d) to comply with any applicable Trade Restrictions with regard to issuance of payments and finance associated with the Products.
13.4. The Buyer shall indemnify Nokian Tyres and hold Nokian Tyres harmless from and against any damages, liabilities or costs resulting from the Buyer’s violation or alleged violation of the Trade Restrictions.
13.5. Nokian Tyres retains the right to cancel or delay delivery of any Product at any time without penalty or liability of any nature, as, at the sole discretion of Nokian Tyres, required with respect to a Trade Restrictions. The delivery may be delayed until a license, approval or similar is granted or for the duration of the restriction. If purchased Products are transferred in violation of the Trade Restrictions, Nokian Tyres shall not be obligated to provide any warranty for the Products transferred.
13.6. Nokian Tyres is, at their sole discretion, also entitled to terminate the Agreement with immediate effect without penalty or liability of any nature if a delivery of any Product or any other performance of either Party under the Agreement may result in violation of any Trade Restriction.
13.7. Nokian Tyres shall be entitled to audit the Buyer’s compliance with obligations relating to these matters. The Buyer shall supply on request all necessary information to verify compliance.
13.8. As a customer of Nokian Tyres, the Buyer may have been required to provide certain information of the Buyer to Nokian Tyres in accordance with Nokian Tyres’ client onboarding process before the signing of this Agreement. The Buyer undertakes to inform Nokian Tyres immediately if there are any changes to the information provided as part of Nokian Tyres’ customer onboarding process.
14. TERM AND TERMINATION
14.1. The Agreement shall be in full force and effect (i) until Parties’ obligations under the Agreement have been fulfilled or (ii) in case of a continuous agreement until terminated by either party for any reason with at least three (3) months prior written notice. Termination of a continuous Agreement in accordance with this section
14.1 shall not relieve neither Party from any obligations related to orders accepted before termination.
14.2. The Agreement may be terminated with immediate effect by the non-defaulting Party with a written notice to the other Party in the event that (a) the other Party commits a material breach of the Agreement and fails to remedy such breach (if capable of being remedied) within thirty (30) days after having been notified thereof in writing; or (b) the other Party commits an act of bankruptcy, is placed in liquidation or becomes otherwise incapable of fulfilling its financial obligations under the Agreement, or should it become apparent that any of the above occurrences shall take place.
14.3. Furthermore, the Agreement may be terminated with immediate effect with a written notice by Nokian Tyres to the Buyer in the event that (a) there is a direct or indirect change of ownership or control or other substantial change in the management, staff or the business operations of the Buyer which may adversely affect achieving the purpose of the Agreement; (b) Buyer violates any of its obligations under sections 9, 10, 11, 12 or 13; or (c) the Buyer enters into an agreement with a third party or engages itself in any activity which prejudices the confidentiality of Nokian Tyres’ confidential material or information.
14.4. Upon termination of the Agreement due to the Buyer’s breach, Nokian Tyres shall have the right to do one or more of the following: (a) revoke any express or implied authority to sell, resell, use or consume any Products whose title has not passed to the Buyer and re-sell such Products; (b) suspend any deliveries to be made under any agreement with the Buyer; and/or (c) make claim against the Buyer for the price of the unpaid Products and/ or damages.
15. OTHER TERMS
15.1. In case of conflict, the Agreement shall take precedence over these General Terms of Delivery, and these General Terms of Delivery shall take precedence over any other appendices of the Agreement.
15.2. The Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter.
15.3. Neither Party shall be liable to the other Party for any delay or non-performance of its obligations under the Agreement in the event and to the extent that such delay or nonperformance is due to an Force Majeure Event.
15.4. The Agreement and these General Terms of Delivery shall be construed and enforced in accordance with the laws of Finland, excluding its choice of law provisions and Convention on Contracts for the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof, shall be f inally settled in arbitration by one (1) arbitrator in accordance with the Arbitration Rules of the Central Chamber of Commerce of Finland. The arbitration shall be conducted in Helsinki.