Terms and Conditions of Sale for Products and/or Services
1.1. The terms of this Agreement apply to all supplies of products and/or services from Cale Access AB, corporate identity number 556554 8293 (hereinafter referred to as "the Supplier") to the Customer (as defined below). The Supplier and Customer are hereinafter referred to as "party" or the "parties".
2.1. The Supplier manufactures and supplies machine products, network components and other equipment, as well as software products and payment solutions for parking, public transport and entrance fees.
2.2. The Customer has, by way of a separate Order Form (as defined below), ordered Products and/or Services from the Supplier, and the Supplier has agreed to supply the relevant Products and/or Services to the Customer under the terms of this Agreement.
3.Agreement Documents and Annexes
3.1. The Agreement consists of this document and all associated annexes. Unless the parties expressly agree otherwise, these terms and conditions shall apply for deliveries and/or additional deliveries made in future, even if the Supplier does not refer to them.
3.2. Should the content of this document be inconsistent with that of an annex, this document shall take precedence. In the event of a conflict between any of the annexes, they shall apply in numerical order.
Annex 1 Order Form
Annex 2 Agreed Specification
Annex 3 Price and Payment
Annex 4 Service Level Agreement (additional option)
4.1. Unless the context or circumstances clearly indicate otherwise, the following words and termsshall have the meanings stated below:
"The Agreement" refers to this written agreement and its annexes.
"Agreed Specification" refers to the requirements outlined in clause 5.
"The Customer" refers to the purchaser of the Supplier's Products and/or Services as specified in the Order form.
"The Delivery" refers to the Products and/or Services and documentation to be provided by the Supplier under the Agreement.
"Order Form" refers to the form signed by the Customer that specifies the Products and/or Services to be provided by the Supplier under the Agreement.
"Product(s)" refers to the machine products, network components or other equipment and Software Products to be provided by the Supplier under the Agreement. Software Product(s)
"Software Product(s)" refers to the standard Software Products to be provided by the Supplier to the Customer under the Agreement.
"Service/s" refers to the services provided by the Supplier to the Customer under the Agreement.
5. Agreed Specification
5.1. "Agreed Specification" refers to the requirements to be fulfilled by the Delivery and that are listed in Annex 2.
5.2. The Supplier reserves the right to change, modify and make improvements to the Products and/or Services included in the Delivery. In the event of significant changes, the Supplier shall notify the Customer of this in advance.
6. Preparation and Installation
6.1. Unless otherwise agreed, the Customer shall be responsible for the installation of Products. The Supplier shall provide instructions for installation accordingly.
6.2. Where the parties have agreed that the installation is to be performed by the Supplier, the Customer shall ensure that agreed and other necessary preparations for installation have been carried out in accordance with the Supplier's instructions.
7. Date of Delivery and Delivery Inspection
7.1. The agreed Date of Delivery is the date on which the Supplier has accepted that the Delivery shall meet the Agreed Specification. Where agreed between the parties, a delivery inspection shall be conducted in accordance with a mutually agreed delivery inspection annex. The Customer shall approve the Delivery when it meets the Agreed Specification.
7.2. Unless otherwise agreed, delivery is to be made Ex Works from the Supplier's storage premises on the agreed Date of Delivery, in accordance with the Incoterms 2010 relating to Products. Where requested to do so, the Supplier may provide transportation, including insurance, on behalf of the Customer, and select the most appropriate mode of transport. Software Products are to be delivered in accordance with the terms agreed with the Customer.
7.3. If, when the delivery inspection is conducted, the Delivery fails to meet the Agreed Specification, and this is not attributable to the Customer or any circumstances on its part, the Supplier shall provide remedy without undue delay. Where the Supplier is unable to meet the Agreed Specification by way of providing remedy, the Supplier shall propose other measures, including replacement with equivalent Products and/or Software Products. The Customer shall thereby accept the measures proposed by the Supplier, provided such measures ensure that the Agreed Specification is met and do not result in inconvenience to the Customer.
8. Price and Payment
8.1. The price and payment terms for the Products and/or Services are specified in Annex 3.
8.2. The prices and fees specified in the Agreement are exclusive of VAT and other additional taxes determined after the Agreement is entered into.
8.3. The prices and fees specified in the Agreement are valid for a period of twelve (12) months. The Supplier is thereafter entitled to adjust such prices and fees. Where such changes are to the detriment of the Customer, the Supplier shall notify the Customer of this in writing no later than thirty (30) days in advance. Where the Customer does not agree to such a change, the Customer is entitled to cancel the Product or Service in question, with effect from the date on which the price increase would have come into effect. Where the Customer does not provide notice to cancel the Product or Service in question within the 30 (thirty) day period, the price change shall be deemed to have been agreed to. The Supplier reserves the right to index-link prices in accordance with the Consumer Price Index.
9. Delay in Payment
9.1. Where the Customer fails to pay on time, the Supplier is entitled to apply penalty interest and other compensation under law, and, as appropriate, withhold delivery or part thereof.
9.2. If payment from the Customer is not forthcoming within thirty (days) from the date that the Supplier requested that the outstanding amount be settled, the Supplier may terminate the Agreement by way of written notice to the Customer. Where the Supplier terminates the Agreement, the Supplier shall be entitled to compensation for work performed and to damages.
10. Right of Ownership
10.1. Products (excluding Software Products) shall remain the property of the Supplier until they are paid for in full. Until such time that ownership is transferred to the Customer, the Customer undertakes to take good care of such products and not make any changes to them without the written consent of the Supplier.
11. Use of Software Products
11.1. The Supplier grants the Customer the right to use the Software Products specified in the Order Form under the terms of the Agreement.
11.2. The Customer is granted, through payment of the agreed fee, a non-exclusive right, within the scope of its activities and for the agreed purpose, to use the Software Products during the term of the Agreement.
11.3. The licensee acknowledges that no trademarks, copyright or other intellectual property rights are granted or transferred under this Agreement, other than what is expressly stipulated herein. Ownership of the Software Products and all copies, modifications, improvements and developments thereof shall remain with the Supplier.
11.4. Where the Agreement refers to the specific provisions of third parties in relation to certain Software Products, such provisions shall apply in respect of use of these Software Products.
11.5. Where the Customer substantially fails to fulfil its obligations in respect of use of the Software Products, the Supplier may terminate the Customer's right of use with immediate effect by way of written notification.
11.6. The Customer shall not be permitted to copy the Software Product or associated documentation for purposes other than those that have been agreed or for the purposes of backup or security, where this is possible. The Customer is not entitled to modify the Software Product without the consent of the Supplier. The Customer may neither lend nor rent out the Software Products, nor reassign the right of use, without the written approval of the Supplier.
12. Infringement Proceedings
12.1. The Supplier undertakes, at its own expense, to defend the Customer if a claim is pursued or an action brought in relation to infringement of patents, copyright, topography of semiconductor products or of other rights attributable to the Customer's use of supplied Products or Software Products. Moreover, the Supplier undertakes to compensate the Customer in respect of those payments or damages for which it may be liable due to settlements or rulings. The obligations of the Supplier shall only apply on condition that the Customer issues written notification of an intended claim or action within a reasonable time, and where the Supplier may exclusively determine the method of defence in respect of such action, and conduct negotiations regarding settlement or conciliation.
12.2. Where an infringement is ultimately established, and the Supplier is requested to participate in a settlement or legal proceedings as specified in clause 12.1, or if in the Supplier's own view an infringement is likely to have taken place, the Supplier shall either grant the Customer the right to continue to use the Product, Software Product or part of the Software Product, or replace it with an equivalent product, the use of which does not lead to an infringement, or change it so as to ensure that there is no infringement, or take it back and credit the Customer with a sum equivalent to the value of the purchased Product or Software Product, taking into account the time for which it has already been used and the standard depreciation period.
12.3. The Supplier shall not be liable for infringement claims arising from the Software Products being used in conjunction with another product that does not form part of the Delivery, or where the Software Product has been modified or used, contrary to the terms of the Agreement.
12.4. Where the Agreement refers to the specific provisions of third parties in relation to certain Products or Software Products, the specific provisions concerning infringement shall apply thereto. The Supplier is responsible only for making claims against the Supplier of such Products or Software Products.
12.5. The Supplier's liability for the Customer's infringement of the rights of others is limited to the above, provided there is no question of intent or gross negligence. The Customer may not pursue other claims against the Supplier in this regard.
13. Maintenance, Support, Service Levels and Availability
13.1. The Supplier guarantees the availability of spare parts for a period of ten (10) years from the Date of Delivery. Maintenance is to be carried out by the Supplier in accordance with the prices and standards in effect on each occasion.
13.2. In cases where, during the term of the Agreement, any component(s) used by the Supplier in the manufacture of the Products is/are no longer available for purchase or able to be purchased at a reasonable price, the Supplier shall notify the Customer of this immediately. In such cases, the Supplier reserves the right to replace such components with equivalent components, and thereby maintain availability of spare parts for a period of ten (10) years.
13.3. Where agreed between the parties, the Supplier shall provide support in respect of the Products and/or Services in accordance with the Supplier's prices and standards in effect on each occasion.
13.4. Where agreed between the parties, a Service Level Agreement shall be included as Annex 4 to this Agreement, in which the Supplier, when providing certain services, undertakes to meet the service levels and availability requirements specified therein.
14. Liability for Defects
14.1. The Supplier is obliged, with the urgency demanded by the circumstances, to rectify defects in respect of the Delivery that mean that the Agreed Specification is not met.
14.2. Where the Agreement refers to the specific provisions of third parties in relation to certain Machine or Software Products, these shall take precedence over what is specified below in regard to liability for defects. However, unless otherwise agreed, the Supplier is responsible for ensuring that third parties meet their obligations.
14.3. The liability of the Supplier does not extend to defects that are of no significance with regard to the intended use of the Delivery and that do not constitute an inconvenience to the Customer.
14.4. On delivery, the Customer shall undertake to perform an inspection to ensure that the ordered Agreement Specifications have been met. In order to claim that the Delivery is defective, the Customer must inform the Supplier of this immediately, and no later than one (1) month after the effective Date of Delivery. The Customer shall specify, and if necessary, demonstrate the nature of the defect.
14.5. In order to fulfil its responsibility, the Supplier must carry out such changes to a Product that are shown to be necessary due to another product having been updated. However, such changes should not result in the Supplier no longer being able to meet the Agreed Specification.
15. Terms of Warranty
15.1. The Supplier guarantees, for a period of twelve (12) months from the Date of Delivery, that raw materials, work performed and the Products in their entirety conform to the Agreed Specification and that faults will not arise in relation to materials or function under the Agreement, unless caused by the Customer or an accident. This is provided that the Products have been stored, used and maintained in accordance with the applicable user instructions.
- The warranty is limited to warranty products returned to the Supplier for repair.
- Products returned under the warranty will not be accepted unless this is agreed with the Supplier in advance.
- The Customer shall bear the cost of returning such products to the Supplier.
- The Supplier shall bear the cost of returning warranty products to the Customer. A standard method of shipping shall be used. Where a specific delivery service or express delivery is required, the cost is to be borne by the Customer. Defective products to be repaired are to be sent to the Supplier or designated service centre. Contact your local Cale company for further information. The warranty shall not apply in the case of defects or damage attributable to:
- Incorrect use or use of old technical instructions.
- Incorrect handling or maintenance.
- Operation of the products by personnel who are not appropriately trained.
- Use of the Products and installation that, at that time, fails to comply with the Supplier's current specifications and instructions.
- Accidents, storms, lightning strikes and the like.
- Intent, omission or gross negligence on the part of the Customer or a third party.
- Use by the Customer of equipment, accessories, software, etc. (installed or connected) that has not been approved by the Supplier, in such a way that it affects the function of the Product.
- Defects with the Delivery attributable to changes or procedures carried out by the Customer without the consent of the Supplier, or due to negligence on the part of the Customer.
- Faults attributable to viruses or other external breaches, unless such faults relate to negligence on the part of the Supplier, or faults attributable to a third party in any other way, or through other circumstances beyond the control of the Supplier, such as defective equipment, accessories or software not included in the Delivery, or
- When notification of the warranty case is provided later than twelve (12) months after the delivery, or
- Normal operational maintenance such as adjustment, normal wear and tear or the need to purchase consumable items.
- Manipulation by way of falsification or similar illegal activities.
15.2. The Supplier's liability extends only to the repair or replacement of Products. The warranty period for repaired or replaced components shall be equivalent to that of the defective part, provided the component in question is still under warranty. Where this is not the case, a warranty period of three (3) months shall apply.
15.3. In cases where the Customer reports a fault and it is shown not to be a fault for which the Supplier is responsible, the Customer shall compensate the Supplier for the service provided in accordance with the price list in effect at that time.
16. Personal Data
16.1. In the event and to the extent that personal data is handled by the Supplier on the Customer's behalf during performance of the Agreement, the Customer shall be responsible for this data. The Supplier shall undertake to handle such personal data solely in accordance with the Customer's instructions.
16.2. The Supplier shall adopt appropriate technical and organisational measures in order to protect the personal data handled on behalf of the Customer. The Customer shall order the appropriate technical and organisational measures, based on its assessment of the personal data to be processed by the Supplier, and that may be required over and above what is included for the Service in question. Where the Supplier incurs additional costs in order to fulfil security requirements over and above those specified in the Agreement, or takes measures on the instruction of the Customer as above, the Customer shall compensate the Supplier for these costs.
16.3. It is the responsibility of the Customer to, where necessary, notify that personal data is stored in accordance with current legislation.
17.1. Neither party, without the consent of the other party, may use or disclose information to a third party relating to the other party's business that may be regarded as a business or professional secret, or information subject to the obligation of confidentiality under law. Information specified by either party to be confidential shall always be regarded as a business or professional secret. The obligation of confidentiality does not apply to such information that a party can demonstrate that it became aware of other than by entering into the Agreement, or during performance thereof, or such information that is generally known. The obligation of confidentiality shall neither apply in cases where either party is required by law to disclose information. Where either party is legally required to disclose information, the party in question must notify the other party of this in advance.
17.2. Parties shall, through a confidentiality agreement with staff or other appropriate measures, ensure that the confidentiality requirements as specified above are observed. The parties are also responsible for ensuring that subcontractors and employees operating under the terms of the Agreement sign a confidentiality agreement with the same legal content for the benefit of the other party.
18. Compliance with Legislation
18.1. In fulfilling all its obligations under the Agreement, the Customer undertakes to comply with all applicable laws, regulations, provisions and rulings, etc.
19. Agreement Period and Termination
19.1. The Agreement shall come into effect on the day the Order Form is signed, and shall remain in force until further notice. Unless otherwise agreed, a mutual notice period of three (3) months shall apply.
19.2. With reference to the Customer's use of individual Software Products or Services, the following shall apply in place of clause 19.1:
(a) Cale WebOffice: The right to connect to Cale WebOffice shall apply from the date the Order Form is signed and until further notice. The Customer is entitled to terminate such a connection by way of written notification following the end of the current quarter, with a notice period of three months. However, the right to use the Software Product in question shall always cease on expiry of the Agreement.
(b) Cale Permit: The right to connect to Cale Permit shall apply from the date the Order Form is signed and until further notice. The Customer is entitled to terminate such a connection by way of written notification following the end of the current quarter, with a notice period of three months. However, the right to use the Software Product in question shall always cease on expiry of the Agreement.
(c) WayToPark: The right to connect to WayToPark shall apply from the date the Order Form is signed and until further notice. The Customer is entitled to terminate such a connection by way of written notification following the end of the current quarter, with a notice period of three months. However, the right to use the Software Product in question shall always cease on expiry of the Agreement.
(d) Cale Enforcement: The right to connect to Cale Enforcement shall apply from the date the Order Form is signed and until further notice. The Customer is entitled to terminate such a connection by way of written notification following the end of the current quarter, with a notice period of three months. However, the right to use the Software Product in question shall always cease on expiry of the Agreement.
19.3. Moreover, either party is entitled to terminate the Agreement with immediate effect if the other party:
(a) fails to fulfil its obligations under the Agreement, and where the breach is of considerable significance to the party (provided the other party has not taken corrective measures within thirty (30) days of a written request being submitted to this effect); or
(b) has suspended payments, is subject to insolvency or composition proceedings, has filed for corporate restructuring, has entered into liquidation or may otherwise be assumed to have become insolvent.
19.4. Notwithstanding what is stated above in this clause 19, the Supplier is entitled to terminate the Agreement (including the Customer's use of individual Software Products and Services) with immediate effect in accordance with clause 11.5.
19.5. Termination under this clause 19 must be made in writing.
19.6. Where termination of the Agreement is not attributable to a breach of agreement on the part of the Customer, the Supplier shall, if requested to do so, assist in the transfer of the Customer's data to the Customer. The Supplier shall be entitled to reasonable compensation in respect of work referred to in this clause.
19.7. Upon termination of the Agreement, the Customer must immediately cease using the Products and/or Services for which ownership has not been transferred under the Agreement.
20. Force Majeure
20.1. Where either party is prevented from fulfilling its obligations under this Agreement due to circumstances beyond its control, for example, lightning strike, labour disputes, fire, changes in government regulations, government intervention, faults or cable damage caused by third parties, failure or delay in energy supply, telephone connection, other forms of communication or transportation or delays in services provided by subcontractors due to circumstances specified herein, this shall constitute grounds for exemption resulting in postponement of the agreed timescale for performance of the Agreement, as well as exemption from damages and other potential penalties. This shall apply irrespective of whether the cause of the delay occurs before or after the agreed Date of Delivery. Where performance of the Agreement is substantially compromised for a period exceeding three (3) months due to one of the circumstances specified above, a party may terminate the Agreement by way of written notification without being liable for compensation. In such a case, the Supplier is entitled to compensation under the Agreement for work performed and substantiated necessary costs.
21. Limitation of Liability
21.1. Provided there is no question of intent or gross negligence, in the event of direct damage, either party shall be liable for damages at a combined sum of no more than 10% of the agreed price of the Product and/or Service in question. This restriction does not extend to price reductions and interest. However, provided there is no question of intent or gross negligence, parties shall not be liable for loss of revenue, profit or other indirect damage or loss, including the other party's obligation of compensation in respect of third parties, where relevant, or loss of information. The limitation of liability specified under clause 21.1 shall not apply where there is an obligation of compensation in accordance with clause 122, and intent or gross negligence is involved.
22. Transfer of Agreement
22.1. The Agreement may not be transferred without the approval of the other party.
23. Applicable Law and Disputes
23.1. This Agreement shall be governed by and drawn up in accordance with Swedish law, without consideration to potential conflicts with the laws of international trade applicable in the USA.
23.2. Any disputes arising under this Agreement shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be Swedish.
23.3. Arbitration conducted pursuant to this arbitration clause shall be subject to confidentiality. Such confidentiality shall apply to all information that arises during the proceedings, as well as to rulings or awards made in respect of the proceedings. Information that is subject to confidentiality may not, in any form, be forwarded to a third party without the written consent of the other party. However, neither party shall be prevented from forwarding such information in order to best safeguard its rights in respect of the other party in the event of a dispute, or if the party is obliged to disclose such information due to statute, regulation, administrative decision, listing agreement or equivalent.
23.4. Where this Agreement, or part thereof, is transferred to a third party, such a party shall be automatically bound by this arbitration clause.