The Production, delivery and services agreement (“Agreement”) is generated on the grounds of the information provided by the Buyer on the platform configurator.kodema.lt (“Platform”), as a result of the product configuration and order placement process.
This document serves as a general part of the Agreement, whereas the special part of the Agreement that contains special order details and technical product specifications are outlined in a separate document as Appendix No 1 (“Order specification”) and additional agreements (if any).
This Agreement including any additional appendixes, after they are confirmed by the Buyer, are presented to the Buyer on the Platform and in durable means via e-mail.
The Agreement is concluded on the day written above under the terms as follows:
1. PARTIES
The Seller UAB „Kodema“, Limited liability company organized and operating under the laws of the Republic of Lithuania, legal entity code 304934422, VAT payer code LT100011961719, registered office seat Draugystes st. 17-1, LT-51229 Kaunas, Lithuania
and The Buyer.
2. SUBJECT OF THE AGREEMENT
2.1. Goods. Subject to the terms and conditions of this Agreement Seller undertakes to produce and deliver to the Buyer window, door or façade element constructions (“Goods”), according to the quantities, order details and technical specifications provided by the Buyer and set out in the Order specification (Appendix No 1) and any other additional agreements (if any), whereas the Buyer undertakes to accept the Goods and pay to the Seller under agreed terms.
2.2. Services. The Buyer is entitled to order Goods installation and other related services offered by the Seller (“Services”). Such order can be placed by making relevant selections at the product order configuration stage or by placing a separate request to the Seller via e-mail or other communication means offered on the Platform. The Seller approves receiving the order, whereas the Buyer shall provide to the Seller all the requested information relevant to estimate the scope of Services and prepare an offer. The Seller undertakes to provide to the Buyer an offer for Services not later than within 3 (three) business days it collects all the relevant information. Provided that both Parties agree on the Service terms, the Services order shall be concluded by the Parties as additional appendix to the Agreement (“Service order”).
3. SELLER‘S RIGHTS AND OBLIGATIONS
3.1. Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging and delivery of Goods.
3.2. Seller shall provide Goods and execute Services in line with the terms and conditions as specified in the Order specification (Appendix No 1) and the concluded Services order (if such were agreed). Seller reserves the right unilaterally change Goods’ delivery dates or other terms in case the Buyer fails to comply with his obligations under this Agreement.
3.3. The Seller shall provide to the Buyer all information about progress and completion of the Goods and Services order under Buyer’s request.
3.4. Seller may attract any subcontractor for the delivery, provision of Services or other distinct functions under Agreement, on his own discretion.
4. BUYER‘S RIGHTS AND OBLIGATIONS
4.1. The Buyer shall pay for Goods and Services according to agreed terms and conditions indicated in the Order specification (Appendix No 1).
4.2. Provided that the Parties agree on Services:
4.2.1. The Buyer shall receive and provide to the Seller, if it is necessary, all permits required for execution of Services in the site where Goods shall be installed under this Agreement (“Site”) under the applicable laws of the place of Goods’ delivery.
4.2.2. The Buyer shall ensure free access to the Site and other conditions necessary to execute Services within terms indicated in installation schedule approved by both Parties.
4.2.3. The Buyer shall cooperate, also timely and properly provide the Seller all the equipment, sources, services and assistance that may be needed to the Seller in relation to providing Services (for example, electricity, etc.).
4.3. If the Seller fails to fulfil its obligations under the Agreement in terms of delivery dates, quality, defects, conformity with the Order specification, with regard to the particular situation the Buyer shall be entitled to respective remedies at Seller’s cost, that shall in any case be coordinated by the Parties in good faith: (i) to demand elimination of defects (if those can be eliminated); (ii) to demand exchange of defected Goods (if the defects cannot be fixed at all); (iii) to demand for penalty interest for delays (clause 11.2 hereof); (iv) to demand compensation for the incurred direct losses as a result of Seller‘s failure to fulfil the Agreement. The claim for identified irregularities and respective remedies must be submitted by the Buyer under the terms set out in this Agreement (section 7).
4.4. If, as a result of the Parties’ agreement, the Buyer shall hand over the Goods to the Seller (the courier organized by the Seller) for handling / defect fixing, the Buyer must ensure that the Goods are properly packed, protected from any external damage, safe and ready for transportation in accordance with the requirements ensuring safe and secure return to the Seller.
5. DELIVERY TERMS
5.1. Goods shall be delivered on conditions DAP under Incoterms 2010, unless other delivery provisions are agreed under this Agreement. The exact date and place of delivery is indicated in the Order specification (Appendix No 1).
5.2. Date of delivery:
5.2.1. The Parties agree that the actual date of delivery may vary +/- 2 business days, from the one indicated in the Order specification. Prior to the delivery, the Seller in all cases shall notify the Buyer about the expected date and time of the delivery, within the indicated time frame.
5.2.2. The Parties also agree and confirm their understanding that due to material supply chain breakages and shortages of some materials, which is not under control of the Seller, there can be delays in deliveries of Goods ordered. The Supplier will do his best to ensure a timely delivery and will share information immediately about changes in delivery dates. The delays of up to 20 calendar days arising from conditions described should not be treated as the violation of the Agreement between the Seller and the Buyer.
5.3. Conditions for delivery.
5.3.1. The Buyer undertakes to disclose all the details and information that may be relevant to Goods delivery, including the physical obstacles to bring the Goods to the place of delivery or unload them. The Seller shall take no responsibility for failing to comply with the agreed delivery terms, provided that all the relevant information was not disclosed by the Buyer at the time of placing the Goods or Services order.
5.3.2. The Buyer is informed that the Seller may deliver the Goods only under condition that the designated place of delivery may be reached with a heavy-duty vehicle (of length from 17.5 to 18 m, minimum height 4.1 m, minimum width 2.5 m, weight not less than 7.5 tons).
5.4. Unloading:
5.4.1. If the Parties did not agree on Goods installation services, the Seller is only responsible for Goods delivery to the agreed place of delivery, whereas the Buyer shall organize the unloading of Goods from the transporting vehicle at the place of delivery, unless the Parties explicitly agree otherwise.
5.4.2. If the Parties agreed on Goods installation services, the Seller shall deliver the Goods and ensure unloading the Goods from the transporting vehicle.
5.4.3. The Buyer agrees and ensures that the Seller is entitled to make video recording of unloading process, whereas the video material may be used for the legitimate interest of the Parties, so as to solve any potential discussions or disputes in case any damage is made to the Goods or other property.
6. TRANSFER AND ACCEPTANCE OF GOODS AND SERVICES. CLAIMS PROCEDURE
6.1. Transfer of Goods (production and delivery only). The transfer and acceptance of Goods shall take place immediately and not later than within 2 (two) business hours after the Goods are delivered to the destination place and the Seller notifies the Buyer on the latter. Accordingly, the Buyer shall organize transfer-acceptance procedure and accept the Goods by signing the document asserting the acceptance thereof, such as consignment note or other type of acceptance document (“Acceptance deed”).
6.2. Transfer of Goods and Services. After the Seller delivers Goods and executes Services, within 5 (five) business days after receipt of Seller’s notice the Buyer shall organize transfer-acceptance procedure and accept the Goods and Services by signing the Acceptance deed.
6.3. Acceptance process. The Buyer’s representative accepting the delivery (cargo) shall carefully check the Goods in terms of their type, quantity, color, packaging, set of custom products and accessories, absence of any defects of the Services / Goods and their packaging, including the rubbed or damaged paints, edges. For this purpose, the Buyer is entitled to unwarp the packaging of Goods at the time of acceptance. The Buyer shall visually inspect each particular before removing it from the package (pallet / stand).
6.4. Accepting the Goods and/or Services by the Buyer under the Acceptance deed shall mean the Buyer’s acknowledgement of their proper quality and compliance to the Agreement terms, as much as it may be verified at the time of delivery. Having refused to unwarp packaging, the Buyer further cannot rely on this aspect and claim defected Goods after their transfer to the Buyer.
6.5. Remedy. In case that the defects of Goods or Services are confirmed, the Seller undertakes to eliminate them within 20 (twenty) business days after they were identified, unless other time frame is agreed by the Parties. Further on, the repeated transfer – acceptance procedures shall take place.
6.6. The risk of loss of the Goods pass to the Buyer upon the transfer – acceptance of the Goods to the Buyer. The ownership of Goods shall transfer from the Seller to the Buyer as of the moment: (i) the Acceptance deed is signed with no irregularities left; and (ii) the Price for Goods and Services are paid in full. This means that the ownership of Goods shall always stay to the Seller until the Buyer fully pays for Goods and Services under this Agreement.
6.7. If the Buyer fails to accept Goods and/or Services within term indicated above and does not provide justified claim under the claiming procedure provided in this Agreement, the Goods and/or Services shall be considered as fully and properly transferred to Buyer in line of this Agreement, whereas the Seller shall make respective notes on the Acceptance deed.
6.8. If any disputes arise regarding the quality of the Goods or Services and//or compliance with the requirements of the Agreement documents and/or applicable legal acts, such disputes shall be resolved by an independent expert or experts appointed by mutual agreement of the Parties, whose opinion shall be binding on the Parties. If the parties do not agree on the nomination of an expert, each Party appoints one expert, who by mutual agreement appoints a third expert. Expert decisions are made with the approval of the majority of experts. The costs related to the appointment of the expert specified in this clause of the Agreement and the presentation of the expert’s opinion shall be paid by the Party against favour of which the opinion was made.
7. CLAIMS
External damage or other defects
7.1. If during the acceptance or unloading procedure the external damage to the packaging or Goods is observed or any other irregularities from Order specification are identified by the Buyer, in such case the Buyer shall immediately: (i) mark such discrepancy in the Acceptance deed, which shall be signed by representatives of both Parties; (ii) in case of external damage – photograph the received cargo without unloading it from the transporting vehicle (both the location of the defect and the whole product / pallet); and (iii) send a copy of the Acceptance deed with the defect remarks to the Seller by e-mail no later than within 5 (five) working days from the acceptance day, together with the photos of the external defects (if any).
7.2. If any defects have been identified that could not be identified at the time of delivery, the Buyer must immediately, but not later than within 5 (five) working days from the discovery of such defects, notify the Seller by e-mail, together with photos confirming the defects.
Delays
7.3. If the Buyer receives the Goods later than it was agreed under this Agreement and has suffered direct losses due to late delivery, the Buyer shall: (i) note the day of the order delivery in the Acceptance deed; and (ii) submit a written claim no later than within 5 (five) working days, clearly naming the costs incurred as a result of the late delivery of Goods and submit documents confirming the cost amount and the causal link between the late delivery and costs.
7.4. The Seller has the right to reject any claims in relation to delayed performance of the Agreement, provided that such delays were resulted by the acts on the side of the Buyer (such as being late in submitting the specification, changed the dimensions of the Goods or made any other changes that could affect the production or delivery process and deadlines).
Non-compliance with the product specification
7.5. The Buyer undertakes to name to the Seller all specific or non-standard requirements or solutions regarding Goods during the order placement procedure, so as to include them in the order specification, also to carefully review the Goods specification provided by the Seller.
7.6. The Seller has the right to reject all claims for non-compliance with the product specification if (i) certain features of the ordered Goods, not customized by the Buyer, are manufactured as a standard (according to the production nomenclature catalogues or requirements of the standards of the market of European Union), or (ii) changes or certain requirements of the Buyer were not included in the final Order specification, that was approved by the Seller.
Other provisions regarding claims procedure
7.7. The Buyer may submit the Goods for installation only after checking the quantity and set of products and visually assessing the quality of each particular, regardless if the installation is ensured by the Buyer or the Seller. If the Goods were submitted for installation, this is regarded as Buyer‘s approval of their compliance and absence of defects that could be noticed at the time of acceptance.
7.8. The Seller has the right to reject any claims: (i) if the unloading was organized by the Buyer, and the damage was noticed and recorded by the Buyer after unloading the Goods from the transporting vehicle (pallet / package). However, the latter case exclude situations where the defects could not be noticed by the Buyer prior to unloading (for ex. In case of closely packed Goods); (ii) the discrepancy was not noted on the Acceptance deed and no photographs proving the damage were provided; (iii) for scratches, other mechanical and physical damage if such ones were recorded after removing the Goods from the pallet or stand and/or after installing the Goods or during their installation (if installation is organized by the Buyer) and/or after receiving the Goods from the Seller, the Buyer continues to reload / transport the Goods; (iv) due to the functioning, dimensions or deformations of the Goods when they have already been installed and no evidence (photos, videos) has been provided that the installation has been carried out in accordance with the requirements and has not adversely affected the Goods.
7.9. The Seller shall register and resolve only the claims received in writing with all the necessary information provided by the Buyer, as specified above.
7.10. The Seller shall not accept invoices from the Buyer for the performed repair or other works, if such works and expenses were not agreed in writing beforehand.
7.11. The Buyer may not withhold payment of the executed order for another order for which a claim has been registered.
7.12. Claims for hidden defects may be registered during the warranty period, but provided that the Buyer has fully paid for the Goods and Services to the Seller.
7.13. The Seller has the right to reject any claims of the Buyer if the Goods have been stored, transported and operated by the Buyer not in accordance with the instructions provided by the manufacturer or the Seller or in violation of this Agreement.
8. PRICE AND TERMS OF PAYMENT
8.1. The price of Goods is indicated in the Order specification. The price for Services shall be agreed separately and indicated in the Service order (both – “Price”).
8.2. The Price includes packaging on wooden pallets and transportation costs.
8.3. The Service order shall include extra price for unforeseen Services that were not included in the Service order scope, expressed as the daily fee.
8.4. If the Buyer intends to make any changes to the existing Order specification – in such case, a new Order specification must be formed and approved by the Parties under the procedure set out in this Agreement. In all cases the pricing or other terms of the previous Order specification are not binding to the Seller, unless otherwise agreed by the parties.
8.5. The Price includes all taxes which should be paid by Seller but excludes value added tax (VAT), which should be declared and paid (if it’s necessary) by the Buyer.
8.6. The Buyer shall make an advance payment of the Price or may be requested to pay the total Price upfront. The Payment conditions are specified and agreed in the Order specification (Appendix No 1) of this Agreement.
8.7. All payments shall be made in euro via tools provided on the Platform, including the payment initiation services provided by the Seller’s partners.
8.8. The Seller is entitled to unilaterally, upon notifying the Buyer, set-off counterclaim amounts payable by the Buyer to the Seller.
9. IP RIGHTS AND CONFIDENTIALITY
9.1. As a part of order placement process, the Buyer is enabled to configure the design of Goods and other variable specifications, as much as it is compatible with technical requirements and ranges by manufacturer. Such configuration is made in the use of the software and other tools provided by the Seller on the Platform. The rights to the final design and concept of Goods shall stay at the Seller.
9.2. The Buyer shall treat all contents of this Agreement, in particular prices, discounts, know-how, the concept and process order placing for Goods and/or Services, and other business secrets as strictly confidential and shall not divulge or make available any information, documentation, drawings or other records to third parties without our express written consent. This shall not apply if these contents are publicly known by third parties without any breach of confidentiality.
9.3. The use of the trademarks belonging to the Seller or its subcontractors shall require a corresponding written licence agreement with the owner.
9.4. The Buyer may not alter the trademarks or misuse them in any other way and may not transfer them to third parties. In addition, it may not use any other trademarks, corporate signs, signs, logos or images where there is a risk of confusion with Seller‘s trademarks. The Buyer shall notify the Seller immediately of any unauthorised use of the trademarks by third parties which it discovers.
9.5. Even if the Seller accepts delivery of Goods according to information, drawings, models or samples provided by the Buyer, the Buyer shall guarantee that the manufacture and delivery of these articles does not infringe the property rights of third parties. The Buyer shall undertake to indemnify the Seller immediately against licence and damage claims of third parties. The Buyer shall cover all direct and indirect damages and claims arising from the infringement and assertion of any property rights of third parties.
10. WARRANTY AND DISCLAIMERS
10.1. Goods are guaranteed on the terms and conditions specified in the technical product description and warranty (Appendix No 2).
10.2. The Buyer is informed, and the Parties agree that the guarantee for Goods, after their installation, shall apply only under condition that the Goods were installed by installation service providers certified by the manufacturer of the Goods. The installation performed by the Seller shall always ensure the validity and application of the guarantee.
10.3. The Buyer acknowledges being aware that the Goods are custom made to the measurements given by the Buyer. Therefore, the Seller cannot be held responsible for any mismeasuring on the part of the Buyer and no refund will be given because of the Buyer’s mismeasurements.
10.4. The Buyer confirms and acknowledges that prior to confirming the Order specification it has verified and made sure on the accuracy of measurements and specification of Goods, including its opening directions, shapes and colours. After the Agreement has been executed the Seller will not accept any claims for unfulfilled expectations, unless they have been agreed within the process of concluding this Agreement.
11. LIABILITY
11.1. In case the Buyer delays to remunerate the Seller as specified in Section 7 of this Agreement, the Buyer shall pay to Seller default interest equal to 0,02 % from delayed amount for each day of delay.
11.2. In case the Seller delays to execute Services in time, the Buyer may demand the Seller to pay to Buyer default interest equal to 0,02 % from delayed value of Services for each day of delay, but not more than 5% from the total Price.
11.3. In case the Seller delays to deliver Goods in time, the Buyer may demand the Seller to pay to Buyer default interest equal to 0,02 % from the value of delayed Goods for each day of delay, but not more than 5% from the total Price.
11.4. The provisions of this section shall not apply to the delays resulted by material supply chain breakages and shortages of some materials, as indicated in clause 5.2.2 of this Agreement, provided that such delay does not exceed 20 calendar days.
11.5. In any case the Seller will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement or using the Goods and/or Services result.
12. FORCE MAJEURE
12.1. In force majeure circumstances, when completely or partially execution of some obligations of this Agreement is not possible, including but not limiting to the fire, natural disasters, blockade, import or export prohibitions, restrictive order by government authorities or other circumstances beyond control of any of the Party, the fulfilment of obligations under this Agreement is postponed until the end of the said force majeure circumstances, but not longer than for 90 (ninety) calendar days. Later, Agreement may be unilaterally terminated without any party responsibility for failure of its obligations.
12.2. Party which can’t fulfil its contractual obligations due to arisen force majeure circumstances shall immediately notify the other Party.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1. This Agreement is constructed and governed under the law of Republic of Lithuania.
13.2. Any and all disputes and/or claims arising out of or in connection with this Agreement shall be settled amicably in way of negotiations. If agreement in way of negotiations can’t be reached in 30 days, disputes will be finally settled in the Arbitration Court as indicated in clause 13.3 of this Agreement.
13.3. Any dispute, arising out of or relating to this Agreement, shall be finally settled by arbitration in the Vilnius Court of Commercial Arbitration in accordance with its Rules of Arbitration. All procedural documents shall be served via e-mails of Parties indicated in Section 1 of this Agreement. The number of arbitrators shall be 1 (one). The place of arbitration shall be Vilnius. The language of arbitration shall be English. The law of Republic of Lithuania shall be applicable to the dispute.
14. VALIDITY
14.1. This Agreement comes into effect from the date of all the following: the Agreement and Order specification is confirmed by the Buyer (its representative) on the Platform, further presented to the Buyer in durable means (e-mail) and an agreed initial payment of the Price is made by the Buyer from its bank account and varied into the bank account of the Seller.
14.2. The Parties explicitly agree that this Agreement is concluded in electronic means, under a secure electronic signature, by forming a legally binding contract between the Parties and treated equally as hard copies with signatures. The Buyer expresses its explicit consent to the terms and provisions of this Agreement by making a payment from the account in its name to the Seller, in line with the provided instructions and payment purposes.
14.3. By concluding this Agreement in the described way the Parties agree that any further concluded appendixes, additional orders or amendments to the Agreement shall become equally effective from the date the Parties confirm them via electronic means provided in this Agreement, which amongst all may include confirmations via e-mail or tick-box on the Platform.
14.4. The Agreement is valid until full obligations of both Parties are fulfilled.
15. MISCELLANEOUS
15.1. In performing this Agreement the Parties undertake to cooperate, act honestly and wise, in order expectations and interests of both Parties could be met. This Agreement has to be implemented as economically as possible for each Party. Both Parties agree to provide each other with needed help, pay attention to each other‘s recommendations regarding further proper implementation of this Agreement. Parties oblige to restrain actions, which might violate conditions of this Agreement, affect mutual interests, good name of the company and partnership.
15.2. Any and all amendments to this Agreement shall be in writing and duly signed by both Parties.
15.3. Any notices under this Agreement shall be given to the Parties in writing registered mail or e-mail to the addresses specified in this Agreement.
15.4. The Parties undertake do not disclose any information received from other Party in connection of this Agreement as well conditions of this Agreement, and take all of the possible means that this information would not be available to third parties. Terms of this clause shall not be applied for information which: (a) are publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the receiving Party; (b) are discovered or created by the receiving Party before disclosure by the other Party; (c) or is received by the Party through legitimate means other than from the other Party.
15.5. If any clause of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other clauses of this Agreement and the remainder of the clause in question shall not be affected thereby.