Section 1. Preamble
These general terms and conditions shall apply to the sale and delivery of products (the “Product”) delivered by Proximion AB (“Proximion”) to the customer (the “Customer”), to the extent not otherwise agreed in writing between the parties.
Section 2. Delivery and packaging
Proximion shall deliver the Product, incl. instructions and other relevant documentation (the “Documentation”), to the Customer as agreed between the parties.
Packaging and shipment of the Product shall be according to Proximion’s standard procedures. The Customer shall pay for any increased costs due to special packaging or shipment requests.
The Customer shall be responsible and liable for any shipping costs, duties, tariffs, taxes or fees imposed by any local, state, provincial or national government in connection with the sale and shipment of the Product to the Customer by Proximion.
Proximion’s obligation to ship the Product to the Customer shall be fully and completely discharged, and all risk of loss or damage shall immediately pass to the Customer at the time that the Product is delivered ex works (EXW) as defined in Incoterms 2000 from Proximion’s warehouse or production facility.
Section 3. Payment
All prices, fees and other remunerations are exclusive of VAT and other applicable taxes and charges.
Payment for the Product shall be made within thirty (30) days from the invoice date.
Penalty interest in arrears shall be payable in the event of late payment. Penalty interest shall be the reference rate of the Bank of Sweden, as applicable from time to time, plus ten (10) percentage points.
Section 4. Remedies in the event of defects in the Product
Proximion shall rectify defects in the Product through repair or re-delivery. Rectification or re-delivery shall take place with the urgency demanded by the circumstances and at Proximion’s own cost. Proximion shall have no obligation to rectify a defect should the rectification cause any inconvenience and/or cost for Proximion that is unreasonable in relation to the significance of the defect for the Customer.
In the event the Product can be used for its purpose notwithstanding the defect, Proximion shall be entitled, at its sole discretion, instead of rectification, to make a price reduction which corresponds to the significance of the defect.
Proximion’s responsibility for defaults shall apply provided the Customer without undue delay and in no event later than twelve (12) months after the delivery of the Product, notifies Proximion in writing of the default.
Section 5. Intellectual property rights
Proximion shall own and retain any and all intellectual property rights relating or pertaining to the Product.
Section 6. Termination
Either party may terminate the Agreement prematurely if:
- the other party is in material breach of its obligations under the Agreement and has not remedied such breach within thirty (30) days after receipt of written notice of the breach, or
- the other party is declared bankrupt, the subject of any composition or arrangement with or assignment for the benefit of its creditors, deemed insolvent, in liquidation or has ceased to carry on business.
Proximion retains the right to terminate the Agreement prematurely although the Product has been delivered to the Customer.
Section 7. Liability
Both parties shall, with the limitations set out in this agreement, be responsible for the other party’s direct damages caused by the first party’s negligence.
Proximion's liability for damages in accordance with the Agreement shall in no event include compensation for loss of profit, saving or any other indirect damage, including any possible liability for damages for the Customer in relation to any third party. Proximion shall not be liable for any loss of information or data.
Proximion’s total liability for damages shall in no event exceed an amount equivalent to the compensation received by Proximion for the Product.
The limitations set out above shall not apply if Proximion has acted with gross negligence or wilful misconduct or as regards claims pursuant to Section 8 below.
Section 8. Liability for third party rights
Proximion warrants that the use of the Product in accordance with the Documentation does not infringe any third party rights. Any liability pursuant to this section entails that Proximion is obligated to take legal and other measures on behalf of the Customer which are necessary following a claim of infringement by any third party and shall be liable for any damages which may be payable to such third party.
Section 9. Retention of title
Title to the Product shall remain with Proximion and shall not pass to the Customer until payment in full for the same has been received by Proximion.
Section 10. Miscellaneous
Each party shall be relieved from liability for a failure to perform any obligation under the agreement during such period and to the extent that the due performance thereof is prevented by reason of any circumstance beyond the reasonable control of the party. Immediately upon the cessation of such circumstance, the obligation shall be performed in accordance with the Agreement. To be relieved from liability in accordance with the above, a party shall give immediate notice to the other party of the occurrence and nature of the event preventing the performance.
Any changes or amendments to the Agreement shall be made in writing and duly signed by the Parties.
Section 11. Governing Law and Disputes
The agreement shall be construed in accordance with and be governed by the substantive laws of Sweden.
Any dispute, controversy or claim arising out of or in connection with this 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 above shall not prevent Proximion from initiating legal action in any public court or governmental authority to collect payments which are due for payment and undisputed by the Customer.
The arbitral tribunal shall convene in Stockholm. The language used in the proceedings shall, unless otherwise agreed, be Swedish.