TERMS AND CONDITIONS
These General Terms and Conditions shall govern all proposals, deliveries and servicing of Popravak Brodskih Motora d.o.o. (“PBM”) as well as Customer order acceptance by PBM regarding PBM governors, spare parts, pneumatic valves, remote control systems, servicing, etc. and their products in general. Any terms and conditions required by the Customer in their order form or otherwise shall not be accepted unless confirmed in written form by PBM. Agents issuing an order to PBM shall be personally responsible for any and all obligations under the order form, i.e. according to Article 101 of the Croatian Obligations Act (“COA”) they shall fulfil any claim held by PBM against the agent ordering the service or against the Customer. If the agent discovers the identity of the end Customer, PBM may accept it in written form if PBM finds it commercially reasonable.
Drawings, weights, sizes, and all described in PBM proposals or order confirmations shall be as precise as possible. All descriptions, schemes and other information included in PBM catalogues, price lists and other publications are intended for general product description and shall not deemed to constitute representation or basis for or be deemed to be part of a contract or agreement between PBM and the Customer.
Unless specified otherwise in PBM’s order confirmation, the delivery of a Product ordered by the Customer shall be at the place of production.
Although PBM shall make all efforts to ensure the Product delivery is in compliance with the agreed delivery date, it shall not entitle the Customer to claim damages in case of delay notwithstanding the reason for delay.
Unless specified otherwise in PBM’s order confirmation, PBM may at its own discretion change the source of materials or subcontract for the production of part or all parts of the product. If the delivery is late due to insufficient delivery information or due to non-fulfilment of financial liabilities toward PBM or for lack of instructions related to the delivery or incomplete financial arrangement on the Customer’s side, or if the delivery date is changed at the Customer’s request, PBM shall have no liability to the Customer during the delay for the foregoing reasons and the product shall be stored at the Customer’s cost and liability. The Customer shall be liable for any and all expenses and fees incurred after the Product delivery, including transport, insurance, customs and taxes. PBM does not accept any liability concerning the transport or insurance even when the transport of the Product is arranged by PBM on the Customer’s behalf.
The Product shall be the Customer’s responsibility from the moment of delivery at the production place.
4. PRICES AND PAYMENT TERMS
The prices specified in the PMB’s proposal at the Customer’s request are invariable for the period specified in the proposal with the exception that the price may be changed exclusively due to changed national taxes or duties. The prices specified in the published price lists after the contract with the Customer is executed are subject to change without prior notice and are not binding for PBM in respect of the Customer. Product installation or any assistance in the installation is not included in the Product price unless specifically mentioned otherwise. Instead, such service shall be charged separately. Unless specified otherwise in PBM’s proposal or order confirmation, payment terms shall be 15 (fifteen) calendar days from the invoice issue date. If a different payment term is agreed with the Customer, the payment term shall be specified in the invoice. Default interest shall run as from the invoice maturity date at the rate as defined in the Croatian Obligations Act. If the Customer fails to settle the invoice after the maturity and a reminder, PBM retains the right to claim the due sums in a court action and any and all additional expenses and default interests shall be borne by the Customer. Agents issuing an order to PBM shall be personally responsible for any and all obligations under the order and in compliance with Article 101 of the Croatian Obligations Act (COA) they undertake to fulfil entirely the claim held by PBM against the agent ordering the service or against the Customer.
TRANSFER OF TITLE
Notwithstanding the delivery, the title to the product shall remain with PBM and shall not pass to the Customer until PBM receives the full payment in respect of the products that are or will be delivered, as well as all works arising from the sales contract. During the period until the delivery completion or installation of the Product or transfer of title, the Customer shall undertake any and all activities and measures for the protection and insurance of the product subject to the contract and in that period the Customer shall insure the product from any customary insurance risk, particularly against theft, fire, and damage due to water penetration. At first call from PBM, the Customer shall present the evidence they fulfilled the insurance duty and PBM shall be entitled to any damages incurred based on such insured risks throughout the period until the transfer of title to the Customer. Throughout the time while PBM is the owner of the product, the Customer in whose possession the product is held may sell or deliver the subject product to any third party within the normal operations only upon exclusive prior written authorization by PBM and provided the agreed fee i.e. any expenses incurred by PBM in relation to the product are paid by or on behalf of the Customer. PBM shall take the possession of all or an individual product if there is any circumstance described in Article 10. In order to take possession of any product according to this Article, PBM may enter/access the land/building/facility where the product(s) are located or reasonably believed by PBM to be located. The Customer shall pay and all expenses incurred by PBM based on the acceptance of possession of the Product. This Article shall in no way be interpreted at the expense of PBM or their rights held in compliance with the law against the Customer or third parties.
PRODUCT AND SERVICE WARRANTIES
PBM WARRANTIES ON EQUIPMENT
PBM equipment warranties shall be identical to the standard equipment manufacturer warranties and the terms and conditions obtainable from the manufacturer at request and warranties as defined by the law. When legally acceptable, the manufacturer’s warranty has priority over the legal warranty.
PBM SERVICE WARRANTY
The warranty provided by PBM on equipment servicing shall be as follows:
- 1 year on governor service
- ½ year on remote control system service
- ½ year on other services within the PBM production program
The sole PBM’s liability under these General Terms and Conditions shall be free of charge repair or replacement, at its own discretion, of any and all PBM equipment found faulty or, in case of inadequate service, repeating the service in the warranty period. Except for the repair, replacement or change of performance, PBM shall not be liable for any loss or damage arising from any statutes, laws, tort, accidental or consequential damages, including any loss of income or profit, loss of sales or economic loss of the Customer, or for any other reason not explicitly mentioned in this Article. Such repair, replacement or change of performance shall be done on a location as selected by PBM. In case of replacement of any PBM Product in compliance with this guarantee, PBM may replace the Product with a modified or improved Product or part.
PMB’s liability toward the Customer is excluded also if:
- PBM-Products are at PBM’s discretion damaged by wrongful handling, negligence or accident
- PBM Products are dismounted or repaired without PMB’s knowledge
- PBM Products are repaired or substituted with any part not manufactured in PBM.
Except for the obligations expressly set out in the contract and herein (unless agreed otherwise in written form), PMB shall not give any other warranties (such as e.g. warranties included in any statute, general law, trade, etc.) and particularly excludes any implied warranties in view of merchantability or fitness for a particular purpose or any other warranties whatsoever. PBM (or any affiliate) shall not be liable for any loss or damage incurred by the Customer or product user arising from any statute, law, tort or negligence of the Customer or product user. Such restrictions shall not apply where the loss or damage are incurred as consequence of major negligence or intentional default by PBM. PBM (or any affiliate) shall not be liable for any consequential loss or damage related to the Product, where incurred based on loss of profit, winding up of the Customer or product user, reduction in value of other goods of the Customer or product user, or in any other manner due to consequence of breach of warranty, breach of contract or negligence on the part of the Customer or product user.
Any and all risk and expense during the Product installation, i.e. after the delivery, shall be the Customer’s liability. Any injuries or damages on property during installation or testing of products after delivery shall be liability of the Customer who expressly agrees to compensate the damages to PBM for any liability incurred thereby. If the Product is modified or any part thereof replaced with a part not delivered by PBM (except based on PBM’s written approval), all risk and liability for further use of such Product shall be assumed by the Customer.
The Customer shall not make any modifications in the program of the delivered Product unless authorized or requested by PBM in written form. All liability due to unauthorized changes shall be the Customer’s liability. In case PBM provides a written notification to the Customer (to the latest known address) for return of the Product due to safety modifications (PBM’s cost) or replacement of individual parts or programs, the Customer shall react quickly in view of the call. If the Customer is not user of the Product, the Customer shall notify the user of the equipment and hurry the latter with regard to the sent message. If the Customer fails to do so, all liability in case of faulty Product operation, damages or injuries incurred by the further use of such Product shall be assumed by the Customer. Upon expiration of three years after the product delivery date, PBM shall not acknowledge any complaints notwithstanding their cause.
8. PERFORMANCE DATA
All issued data and other details regarding the Product performance are based on PBM’s experience collected during the testing and otherwise, but are not fully reliable.
If any of the events mentioned below occurs, all calculated and outstanding sums as agreed shall become due for payment immediately and PBM may at any time terminate the contract or any other agreement between the Customer and PBM – by written notice or terminate further delivery of parts notwithstanding the PBM’s rights to full payment.
The Customer fails to fulfil its financial liabilities, breaches the contract with regard to any obligation toward PBM, there are reasons for termination of the contract and cancellation of further deliveries based on PBM’s reasonable judgment; The collection takes place through the Customer’s real property or assets; The Customer offers or proposes a settlement, agreement or compensation with its creditors; The Customer is subject to an application for bankruptcy or a bankruptcy administrator, liquidator or another person assumes the Customer’s property, funds or assets. PBM has concluded the Customer is unable to make full payment or fully perform any obligation from the Contract and the Customer is (according to PBM’s reasonable judgment) unable to provide security coverage for its obligations.
10. RIGHT TO INFORMATION, DESIGN AND PRODUCTION
The Customer expressly agrees that PBM retains all rights to any and all information in the Product design and production and PBM grants no right to the Customer for use of such information for the purpose of purchase of such products from other manufacturers.
11. FORCE MAJEURE
PBM shall not be responsible for any damage, loss or injury incurred or suffered by the Customer if PBM is prevented, hindered or late in the performance of any obligations in case of events out of PBM’s reasonable control or which are not attributable to PBM and which make impossible the performance of PBM’s obligations to the Customer (force majeure). Force majeure shall include but not be limited to: strike, industrial dispute, trade dispute, (in case PBM or third party employees are involved), unavailability, interruption, error or delay in delivery from PBM’s usual suppliers, production plant, transport routes or transport means, machinery or equipment breakage, power blackout, non-performance of PBM’s subcontractors, national provisions, local administration, bad weather, fire, flood, explosion, theft, civil commotion, terrorist activities or war.
12. APPLICABLE LAW AND JURISDICTION
These General Terms and Conditions and any contract related herewith shall be exclusively governed by the Croatian laws. Application of the UN Convention for International Sales of Goods is excluded. Jurisdiction over any procedure related to any issue which may occur in relation to such contract or these General Terms and Conditions shall be held by the Croatian courts.