1. FORM AND INTERPRETATION
Capitalised terms are defined in the document entitled Master Agreement, and Customer acknowledges that they have reviewed the Master Agreement and agree to the terms contained therein and hereby incorporated herein as part of the Agreement.
As used in this Agreement, (a) the word “or” is not exclusive, (b) “including” is always without limitation, and days refers to calendar days, (c) all monetary amounts are in Euro.
• Once REBALL OÜ, hereinafter called HDD Sondes, determines if the broken transmitter, hereinafter called sonde, can be repaired, Customer may purchase the repaired sonde immediately (subject to availability), or at a later date.
• Customer is not charged for storage and will only be charged once Customer wishes to purchase a repaired sonde.
• HDD Sondes will not return a broken sonde because repairs are started upon receipt. However, HDD Sondes will offer Customer a repaired sonde for purchase.
• If Customer wants its original Equipment repaired instead of replaced, Customer must notify HDD Sondes in writing of Customer’s intent to retain the original Equipment prior to HDD Sondes performing Services.
• For those Customers that want their original broken Sonde (“OBT”) repaired, Customer acknowledges that HDD Sondes will incur inspection and repair costs to determine if it can be fixed.
• If the OBT cannot be fixed, Customer will be charged the cost of the repaired replacement Sonde but shall not be charged for any repair costs incurred by HDD Sondes , while attempting to repair the OBT.
• Customer acknowledges that repair of OBT may take 6-8 weeks to complete.
• Shipping from HDD Sondes to Customer of Repaired Equipment must be paid by Customer.
• In HDD Sondes ’s discretion, HDD Sondes may provide Customer with a partial credit/refund a deposit payment in exchange for the transfer of ownership of Customer’s OBT to HDD Sondes .
Conflict of Terms
In the event of any conflict between these terms, the PO and the Master Agreement, the Master Agreement governs and controls. Shipments to Customer by HDD Sondes are made per the Agreement.
HDD Sondes reserves the right to withdraw/cancel an Order prior to delivery/providing Services if the cost to complete the Services varies from initial pricing due to a typographical, clerical or mathematical error.
2. PAYMENT TERMS
Payment is due by Customer prior to delivery of the Services.
• If HDD Sondes agrees to extend payment until delivery of the Services, payment shall be due immediately upon receipt of the Services.
• All prices quoted by HDD Sondes are subject to the addition of additional taxes, charges and/or applicable fees, such as the applicable sales, use, excise or other taxes, import duties, freight, insurance, packing charges, shipping charges, documentation charges, customs charges, or similar Costs or charges.
• Any quotation price issued by HDD Sondes for Services remains in effect for thirty (30) days from the date the quotation is issued.
• All payments shall be made in Euro currency to HDD Sondes at its office.
• The payment amount of any invoice issued by HDD Sondes shall be deemed complete and accurate unless Customer notifies HDD Sondes in writing no later than 3 business days from the date of the Invoice that Customer disputes the validity of the Invoice.
HDD Sondes provides Services to Customer F.O.B. Customer’s shipping point.
• The quoted prices are based on this method of shipping.
• Shipping, handling and insurance charges will be added to all Invoices as a separate line item on the Invoice.
• Minimum of 5 euro per Order handling charge applied to all shipments.
• By shipping F.O.B., the risk of loss passes to Customer upon delivery to or pickup by the freight carrier.
• Claims for loss or damage after delivery to or pickup by the freight carrier shall be filed with the carrier.
• Quoted delivery dates are approximate and are subject to revision by HDD Sondes.
• HDD Sondes disclaims all liability arising out of/relating to direct, indirect or consequential damages resulting from delayed shipment or delivery to Customer.
• HDD Sondes shall not ship partial Orders unless agreed to in advance by the parties in writing.
4. INSPECTION AND REJECTION
• inspect all deliveries as well as test and evaluate the Services provided by HDD Sondes within 24 hours of delivery.
• be responsible for testing all sondes and locating equipment prior to their installation and use by the Customer. Such testing by Customer shall be performed above ground to make sure that the Sondes and locating equipment produce correct data prior to their installation and use.
• notify HDD Sondes in writing of any defect, damage, error, shortage or deficiency (“Claim”) in the Services provided within three (3) business days from the date of the delivery.
Failure of Customer to notify HDD Sondes of the Claim shall result in an absolute and unconditional waiver of any Claim, damage, or action Customer may have arising out of or relating to the Claim and result in Customer’s acceptance of the Services. Claims properly submitted shall be governed by the Product Return Procedure/Limited Warranty provisions contained in the Contract Documents.
5. PRODUCT RETURN PROCEDURE
Subject to the terms of this Agreement all sales are final.
• Customer agrees that if they are making a Claim under the Limited Warranty provisions, they shall call or email HDD Sondes’s Customer Service Department before the expiration of the Limited Warranty period for the product.
• The Limited Warranty period commences on the date of delivery of the product to Customer or their consignee.
• pay for return shipping unless HDD Sondes has expressly authorised Customer in writing to ship such Equipment to HDD Sondes HDD Sondes 's expense. Used Equipment, special Orders or specially-fabricated materials may not be returned.
• bear all shipping charges and the risk of loss for the returned products during shipment.
• use reputable shipping companies and provide for delivery confirmation and insurance on all returned shipments.
Customer agrees to pay for return shipping. Upon repair or replacement of the defective item, it will be shipped by HDD Sondes by ground shipping or other forms of standard delivery back to Customer, subject to the terms of this Agreement.
The Limited Warranty and applicable disclaimers and exclusions are contained in the Master Terms of Service Agreement, and Customer acknowledges that the terms therein are read and endorsed.
6. CANCELLATION OF ORDER
Prior to delivery of the Services, Customer may cancel their Order for Services covered by this Agreement, provided that (a) HDD Sondes is given reasonable advance written notice of such cancellation and (b) HDD Sondes is paid cancellation charges which include all costs/expenses already incurred or commitments made by HDD Sondes in connection with the processing, purchasing, handling and fabrication of the Services/Equipment, and a reasonable profit thereon, plus any losses/damages from cancellation.
HDD Sondes 's determination of the charges shall be conclusive.
7. OPERATION AND MAINTENANCE
Customer is solely liable for the operation and maintenance of all Services and Equipment once delivered to Customer.
• Customer acknowledges that locating equipment and Sondes are sensitive Equipment that must be properly maintained to perform accurately.
• Customer shall not attempt to disassemble any lithium batteries or NiCad battery product sold by HDD Sondes.
• Disassembly of any Equipment sold by HDD Sondes by Customer is unauthorised and may carry the risk of electric shock, exposure to hazardous chemicals and similar dangers (“Dangers”).
• HDD Sondes disclaims all liability with respect to these Dangers.
• Customer agrees that they will not modify, repair, alter or disassemble any Equipment sold by HDD Sondes.
• Customer shall avoid operating any battery under adverse ambient conditions.
Adverse ambient conditions include:
• ambient temperatures above 50°C;
• exposure to combustible gases, solvents, vapours, and dust;
• relative air humidity above 80%;
• wet conditions.
If Customer has reason to believe that hazard-free operation is no longer possible, the battery(ies) must be taken out of service immediately and secured against inadvertent use.
Customer cannot assume hazard-free operation if the device no longer appears to function, has visible damage, or was stored under unfavourable conditions.
The Parties agree to maintain the terms of this Agreement in the strictest confidence and shall not disclose such terms to 3rd parties except:
• in the context of the attorney-client relationship;
• as necessary to enforce the Agreement;
• upon request of a taxing authority;
• to a party’s tax advisors for purposes of compliance with tax laws;
• and/or pursuant to court order.
Customer shall indemnify, defend and hold harmless HDD Sondes pursuant to the indemnification provision contained in Section 10 of the Master Agreement.
LIMITATION OF LIABILITY
HDD Sondes’s total liability to customer for actual damages for any cause whatsoever shall be limited to the greater of 1000 EUR or the amount paid by customer for equipment or services that caused such damage, unless such damage was caused by HDD Sondes’s wilful misconduct or gross negligence.
HDD Sondes is not liable for any indirect, special, incidental or consequential damages or for any damages for loss of information, profit, revenue or use or delay damages based upon any Claim by Customer for breach of warranty/contract, negligence/strict liability or any other legal theory. HDD Sondes ’s liability shall not exceed the amount Customer has paid HDD Sondes for the Services/Equipment.
10. FORCE MAJEURE
• HDD Sondes shall not be liable for any delay or failure in performance due to natural hazards, tropical storms, wind storms, earthquakes, hurricanes, unavailability of supplies, transportation difficulties, labour disputes, fire, epidemics, riots, war, and similar occurrences beyond its control.
• Performance times, to the extent applicable, under this Agreement shall be extended for a period of time equivalent to the time lost because of a delay which is excusable under this provision.
Time is of the essence for all purposes of this Agreement unless expressly provided to the contrary.
WAIVER OF JURY TRIAL
Each party agrees that as a material part of the consideration hereunder and as an inducement to enter into this agreement, each party hereby waives the right to a jury trial.
• This Order/Agreement incorporates by reference the terms of the document entitled Master Agreement.
• The Order along with the Master Agreement constitute the Contract Documents and the entire understanding and agreement among the parties hereto and supersedes any prior understandings, whether written or oral, with respect to the subject matter hereof, and there are no agreements, understandings, restrictions, representations, or warranties among the parties other than those set forth herein or herein provided for.
• No modification, written or verbal, shall be binding upon either party unless agreed to in writing signed by both parties.
• Each provision of this Agreement is severable from every other provision, and if any provision is unenforceable, the remainder of the Agreement will remain valid and enforceable.
• Each provision of the Agreement shall be construed as if both parties mutually drafted this Agreement.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement and a valid, legal, and enforceable provision shall be agreed upon by the parties and become a part of the Agreement in lieu of the invalid, illegal, or unenforceable provision or in the event a valid, legal, and unenforceable provision cannot be crafted, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein.
This Agreement shall be governed by the laws of Estonia, and any action arising out of/relating to this Agreement shall be filed in the appropriate court proceeding.
The losing party in any legal/equitable action arising out of/relating to this Agreement including appellate and/or bankruptcy proceedings shall reimburse the prevailing party on demand for all attorney’s fees, Costs and expenses incurred by the prevailing party in connection with the action.