KYKON LTD ("Seller") General Terms and Conditions of Sale ("Conditions")

In these General Terms and Conditions the following definitions shall apply:

Products means the goods, equipment, plant, machinery, or parts (including any installment of such equipment, plant, machinery, goods or any parts for them) supplied by the Seller to the Buyer in accordance with these Conditions; and

Buyer means any entity, firm or person that the Seller has accepted any order for Products.

 

1. Terms and Conditions

1.1 The Conditions cancel and supersede any and all terms of sale pertaining to any Products (and any supplements thereto) previously issued by Seller to Buyer and are subject to change without advance notice. The prices, charges, discounts, terms of sale and other provisions referred to or contained herein shall apply to Products sold to Buyer and shall remain in effect unless and until superseded in writing by Seller.

1.2 Acceptance of an order for Products by Seller shall be deemed to constitute a binding agreement between the parties pursuant to the Conditions and Buyer agrees that the order may not thereafter be cancelled, countermanded or otherwise changed without the prior written consent of Seller.

1.3 These Conditions supersede any prior agreements, representations, or other communications between the parties relating to the subject matter. No other terms and conditions shall apply including the terms of any purchase order submitted to Seller by Buyer, whether or not such terms are inconsistent or conflict with or are in addition to these Conditions unless expressly agreed in writing between Buyer and Seller. Seller's acceptance of Buyer's purchase order is conditional upon Buyer's acceptance of these Conditions. Any communication construed as an offer by Seller and acceptance thereof is expressly limited to these Conditions.

2. Terms of Payment

2.1 Payment for Products purchased by Buyer shall be made in accordance with such of the following terms as have been previously arranged with and expressly approved by Seller in writing:

(1) cash in advance;

(2) confirmed, irrevocable letter of credit established in such amount and form and at such time and at such bank as shall be approved by Seller in respect of each order;

(3) credit account purchases for which payment will be due and payable 30 days after date of invoice; or (4) other payment arrangements expressly approved by Seller in writing prior to or at the time the order is placed.

If no express arrangement is made then payment shall be deemed due and payable cash in advance. Seller may charge interest at the rate of 2.5% per month or part thereof on any payments not received on the due date for payment and may charge storage for goods not accepted on delivery.

2.2 If any Buyer credit account purchase is not paid in accordance with Seller's credit payment terms, in addition to any other remedies allowed in equity or by law, Seller may refuse to make further supplies without advance payment by Buyer. Nothing contained herein shall be construed as requiring Seller to sell any Products to Buyer on credit terms at any time, or prohibiting Seller from making any and all credit decisions which it, in its sole discretion, deems appropriate for Seller.

 

3. Taxes and Duties

3.1 Prices quoted do not include VAT, taxes or duties of any kind or nature unless stated otherwise by the Seller in writing prior to or at the time the order is placed. Buyer agrees that it will be responsible for filing all tax returns and paying applicable tax, duty, export preparation charge and export documentation charge resulting from the purchase of the Products. In addition, in the event any other similar tax is determined to apply to Buyer's purchase of the Products from Seller, Buyer agrees to indemnify and hold Seller harmless from and against any and all such other similar taxes, duties and fees.

3.2 All prices quoted are in Euro currency unless otherwise specified.

4. Title, Property, Risk and Delivery.

4.1 Unless otherwise stated in writing, for all orders, all prices and delivery are FCA, Seller's premises (Incoterms 2010). The risk of loss or damage to Products shall pass to the Buyer on delivery, as per Incoterms 2010. Notwithstanding risk in the Products passing to the Buyer on delivery, legal title in the Products shall not pass to the Buyer until the Seller has received in full all sums due to it in respect of the Products and all other sums which are or which become due to the Seller from the Buyer on any account.

4.2 The Buyer is authorized by the Seller to use the Products in the ordinary course of its business or to sell the Products to a third party pursuant to a bona fide and arm's length transaction at full market value. Until the Seller has received all sums due to the Seller with respect to the Products:

(a) the Buyer will hold the Products in a fiduciary capacity on behalf of the Seller;

(b) the Products shall, subject to the provisions of this section be:

            (i) insured with a reputable insurance company for their full replacement value against all risks to the reasonable satisfaction of the Seller and on request the Buyer shall produce the policy of     insurance to the Seller,

            (ii) kept complete and in good repair and condition and free from damage and/or tampering;

(c) the Buyer will not obliterate or remove any identifying marks on the Products and shall, if requested in writing by the Seller cause a note to be made in its book keeping records and also where possible a notice to be affixed to the Products indicating that the Products remain the property of the Seller; and

(d) the Seller, its representatives, agents or auditors shall be entitled at all reasonable times to examine the Buyer's book keeping records and the Products to satisfy themselves that the note referred to above has been made and that the notice referred to above is affixed to the Products and has not been obscured.

4.3 The Buyer's right to possession and power of sale contained in the foregoing sentences shall automatically cease if the Buyer (being a corporation) has a petition presented for its winding up or administration or passes a resolution for voluntary winding-up otherwise than for the purposes of a bona fide amalgamation or reconstruction or has a receiver, manager administrator or administrative receiver appointed over all or any part of its assets or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder or (being an individual) becomes bankrupt or enters into any arrangements with its creditors or takes or suffers any similar action in consequence or carries out or undergoes any analogous act or proceedings under foreign law or ceases or threatens to cease carrying on business.

4.4 Until such time as the Seller has received payment of all sums due to the Seller with respect to the Products, the Buyer shall place any of the Products still in existence in its possession or under its control at the disposal of the Seller and if required by the Seller immediately deliver the Products to the Seller; provided that Products purchased by the Buyer for resale may be sold subject to the rights of the Seller to attach the proceeds of such sale.

4.5 The Seller (including its representatives, agents and employees) is irrevocably authorised by the Buyer at any time to enter upon any premises of the Buyer or any third party where the Products are or may be stored in order to inspect them or where the Buyer's right to possession has terminated for the purpose of repossessing, removing and if necessary dismantling such Products for the purposes of removal. The Seller shall at any time be entitled to appropriate any payment made by the Buyer in settlement of any invoices in respect of such Products as the Seller may in its absolute discretion think appropriate notwithstanding any purported appropriation to the contrary by the Buyer. Where the Seller is unable to determine if any Products are subject to this paragraph, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer. The Seller has the right to maintain an action against the Buyer for the price.

4.6 Any claims for loss, damage or delay in transit must be entered and prosecuted by the Buyer directly with the carrier, who is hereby deemed to be the agent of the Buyer. Seller shall not be liable for any delay in performance of any of its obligations under these Conditions including without limitation delivery of the Equipment, or for any damages suffered by Buyer by reason of delay, when the delay is caused, directly or indirectly, by any cause beyond the reasonable control of the Seller including, without limitation, those circumstances listed in the Clause 14 entitled "force majeure" below. All payment shall be made in accordance with the terms of the applicable invoice. In addition, storage charges due to delay in furnishing delivery instructions, arranging and establishing a method of payment satisfactory to Seller, or submitting valid import permits or licenses, or any other delay caused by Buyer or at Buyer's request, will be for the account of Buyer. Any dates quoted for delivery are approximate only and the Seller shall not be liable for any delay in delivery. Claims for shortages in shipments shall be deemed waived and released by Buyer unless made in writing within five (5) days after Buyer's receipt of the Products.

5. Cancellation

5.1 Prior to delivery to place of shipment, a Product order may be cancelled only with Seller's prior written consent and Buyer shall indemnify and keep indemnified Seller against all resulting losses and damages.

5.2 Seller shall have the right to cancel and refuse to complete a Product order if any term and/or condition governing this agreement is not complied with by Buyer.

5.3 Buyer may not cancel any order after Seller's delivery to place of shipment.

5.4. Seller shall have the right to cancel and/or and refuse to complete a Product order in the occurrence of a Force Majeure Event, as such is defined in Clause 14 herein.

6. Inspection and Acceptance of Product

6.1 Buyer agrees that it shall inspect the Products immediately after receipt and promptly (in no event later than seven (7) days after receipt) to notify Seller in writing of any non-conformity or defect.

6.2 Buyer further agrees that failure to give such prompt notice or the commercial use of the Product shall constitute acceptance.

6.3 Acceptance shall be final and Buyer waives the right to revoke acceptance for any reason, whether or not known by Buyer at the time of such acceptance. The giving of any such notice by Buyer shall automatically cause the provisions of Seller's warranty to apply and govern the rights, obligations and liabilities of the parties with respect to such non-conformity or defect, provided under no circumstances shall rejection give rise to any liability of Seller for incidental or consequential damages or losses of any kind including, without limitation, loss of use, lost revenues, or lost profits.

7. Warranty

7.1 Seller warrants Products (other than parts) supplied under these Conditions, to be free, under normal use and service, of any defects in manufacture or materials for the period SET BY THE Products Manufacturer.

7.2 Any defect due to manufacture or materials will be repaired free of charge, at the nearest authorised Seller’s place of business provided that (i) the equipment has been maintained and operated within the limits of rated and normal usage as set out in the operators manual; and (ii) the defect did not result in any manner from the intentional or negligent action or inaction by the User.

7.3 Any part repaired or replaced under this warranty will be covered for the Product's remaining warranty period.

7.4 This warranty shall be null and void if parts (including wear parts) which do not confirm to genuine Seller specification are used in the product. Seller reserves the right to inspect the installation of the product and review maintenance procedures to determine if the failure was due to improper maintenance, improper use, abuse, improper storage, and operation beyond rated capacity, operation after discovery of defective or worn parts, or alteration or repair of the equipment by persons not authorised by Seller. No warranty shall cover any item on which serial numbers have been altered, defaced or removed.

7.5 Seller warrants the parts purchased from Seller to be free of defect in manufacture or materials for a period of 12 months after date of invoice from the Seller to the Buyer.

7.6 This warranty does not cover:

7.6.1 Accessories, assemblies and components included in Seller's Product, which are not manufactured by Seller, are subject to the warranty of their respective manufacturers.

7.6.2 Replacement of assemblies: Seller has the option to repair or replace any defective part or assembly. It is Seller's policy to refuse claims for the replacement of a complete assembly that is field repairable by the replacement or repair of defective part(s) within the assembly.

7.6.3 Normal Operational Maintenance Services and Wear Parts: Normal maintenance services such as tune-up, lubrication, fuel or hydraulic system cleaning brake inspection or adjustment, or the replacement of any service items such as filters or brake linings made in connection with normal maintenance services.

7.6.4 Transportation damage: Any damage caused by carrier handling is a transportation claim and should be filed immediately with the respective carrier.

7.6.5 Deterioration: Repairs, work required or parts exposed as the result of age, storage, weathering, lack of use, demonstration use, or for transportation of corrosive chemicals.

7.6.6 Secondary Failures: Should the User continue to operate a machine after it has been noted that a failure has occurred, Seller will not be responsible under the warranty for resultant damage to other parts due to that continued operation.

7.6.7 Workmanship of Others: Seller does not accept responsibility for improper installation or labour costs of personnel other than authorised Seller personnel.

7.6.8 Abuse: This warranty shall not apply to any Products or parts thereof which have been subject to misuse, alteration, abuse, negligence, accident, acts of God or sabotage.

7.7 THIS WARRANTY IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED (INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AND ALL OTHER STATUTORY, CONTRACTUAL, TORTIOUS AND COMMON LAW OBLIGATIONS OR LIABILITIES ON

SELLER'S PART ARE HEREBY EXPRESSLY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING NO REPRESENTATION OR WARANTY IS GIVEN AS TO THE QUALITY OF OR SUITABILITY OR FITNESS OF PRODUCTS FOR A PARTICULAR PURPOSE AND THE USER MUST SATISFY ITSELF IN THIS RESPECT AND SHALL BE TOTALLY RESPONSIBLE THEREFOR. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE LIMITED WARRANTY CONTAINED HEREIN

7.8 Seller reserves the right to make improvements or changes to its products without incurring any obligation to make such changes or modifications to products previously sold.

7.9 IN THE EVENT OF ANY BREACH OF THE WARRANTY BY SELLER, THE PARTIES AGREE THAT SELLER'S LIABILITY SHALL BE LIMITED EXCLUSIVELY TO THE REMEDIES OF REPAIR OR REPLACEMENT (AT SELLER'S SOLE DISCRETION) OF ANY DEFECTIVE PRODUCT COVERED BY THE WARRANTY.

 

8. Limitation of Liability

8.1 NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, SELLER AND ITS AFFILIATES SHALL NOT BE LIABLE FOR, AND SPECIFICALLY DISCLAIM, ANY

LIABILITY FOR ANY:

(A) LOST PROFITS AND/OR BUSINESS INTERRUPTION (WHETHER DIRECT OR INDIRECT); AND

(B) INDIRECT, INCIDENTAL, CONSEQUENTIAL (WHETHER DIRECT OR INDIRECT) OR OTHER DAMAGES OR LOSSES OF ANY KIND, including without limitation, labor costs, loss of use, equipment rental, third party repairs, investigation costs, personal injury, emotional or mental distress, penalties, loss of service of personnel, or failure of Products to comply with any applicable laws; whether or not arising from breach of contract, warranty, negligence, product liability or otherwise.

8.2 Seller's liability to Buyer shall not in any event exceed the purchase price of the Products.

8.3 Nothing in this section shall operate to exclude Seller's liability for death or personal injury when directly related to Seller's negligent act or omission.

 

9. Insurance

9.1 Until the purchase price of the Products is paid in full, Buyer shall provide and maintain insurance equal to the total value of the equipment delivered hereunder against customary casualties and risks; including, but not limited to fire and explosion, and shall also insure against liability for accidents and injuries to the public or to employees, in the names of Seller and Buyer as their interest may appear, and in an amount satisfactory to Seller.

10. Default and Seller's Remedies

In the event of default by Buyer, all unpaid sums and installments owed to Seller, shall, at Seller's sole option, become immediately due and payable without notice of any kind to Buyer and whether or not yet due for payment. In addition to its right of acceleration, Seller may pursue any and all remedies allowed by law or in equity. In addition to the foregoing, and not in limitation thereof, Seller shall have the right to set off any credits or amounts owed to Buyer against any amounts owed by Buyer to Seller.

11. Indemnification by Buyer

To the fullest extent permitted by applicable law, Buyer hereby agrees to indemnify, release, defend and hold harmless Seller, its directors, officers, employees, agents, representatives, successors, and assigns against any and all suits, actions or proceedings at law or in equity (including the costs, expenses and reasonable legal fees incurred in connection with the defence of any such matter) and from any and all claims demands, losses, judgments, damages, costs, expenses or liabilities, to any person whatsoever (including Buyer's and Seller's employees or any third party), or damage to any property (including Buyer's property) arising out of or in any way connected with the performance or the furnishing of services or supply of Products under this agreement, regardless of whether any act, omission, negligence (including any act, omission or negligence, relating to the manufacture, design, repair, erection, service or installation of or warnings made or lack thereof with respect to any Products furnished hereunder) of Seller, its directors, officers, employees, agents, representatives, successors or assigns caused or contributed thereto. If Buyer fails to fulfill any of its obligations under this Condition or this agreement, Buyer agrees to pay Seller all costs, expenses and legal fees incurred by Seller to establish or enforce Seller's rights under this Condition or this agreement. The provisions of this Condition are in addition to any other rights or obligations set forth in these Conditions.

12. Construction and Severability

12.1 These Conditions constitute the entire agreement between the parties regarding the subject matter hereto and shall be construed and enforced in accordance with the laws of the Republic of Cyprus.

12.2 Seller shall not be bound by any agent's, employee's or dealer's representation or by any other representation, promise or inducement not set forth herein.

12.3 The invalidity or unenforceability of any provisions of this agreement shall not affect any other provision and this agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

12.4. The Nicosia District Court of the Republic of Cyprus shall have exclusive jurisdiction over any proceedings arising out of or in connection with any disputes arising out of or in connection to any obligations of the Seller and/or the Buyer.

 

13. Waiver

The rights of Seller shall not be prejudiced or restricted by any indulgence or forbearance extended by Seller to Buyer and no waiver by Seller in respect of any breach of these Conditions shall operate as a waiver in respect of any subsequent breach of the same or any other provision.

14. Force Majeure

The Seller shall not be liable to the Buyer or be deemed to be in breach of these Conditions or any other conditions agreed in writing or otherwise, by reason of any delay in performing or any failure to perform, any of the Seller’s obligations in relation to the Products or the Product order (including the completion of a Product order in whole or in part), if the delay or failure was due to any cause beyond reasonable control of the Seller, including (but without limitation) acts of God, accident, explosion, tempest, riots, war, terrorist act, military aggression, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, sanctions (UN, EU, US, National, etc.), national strikes, lockout, fire, explosion, stoppage of transport, supply shortage or generalized lack of availability of raw materials or energy, regulations, or administrative practices.

ATTENTION – ADDITIONAL FOCE MAJEURE PROVISIONS DUE TO COVID-19 AND MILITARY AGGRESSION OF THE RUSSIAN FEDERATION AGAINST UKRAINE

COVID-19 – The COVID-19 pandemic is currently causing global disruption that would prevent or delay the Seller in the performance of its obligations.

Military Aggression of the Russian Federation against Ukraine – The military aggression of the Russian Federation against Ukraine is currently causing global disruption, including but not limited to unpredictable changes in market prices and/or conditions, unpredictable increases in the cost of raw materials, transportation costs, etc., that could prevent or delay the Seller in the performance of its obligations.

For the avoidance of doubt, Force Majeure provisions shall apply (but without limitation) and Seller shall not be liable to the Buyer or be deemed to be in breach of these Conditions or any other conditions agreed in writing or otherwise by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Products or the Product order (including the completion of a Product order in whole or in part) if any of the Force Majeure events described above, cause  and/or may result to (a) financial distress and/or the inability of the Seller to make a profit and/or to avoid a financial loss, (b) changes in market prices or conditions and (c) the Seller’s financial inability to perform its obligations hereunder.

In such an event, the Seller may, opt (a)  to be discharged from any and all of its obligations related to the Product order and return the down payment received from Buyer with 2% interest per annum or (b) agree to conclude the whole and/or part of the Buyer’s  order, provided that the Buyer prior agrees to the revised unit prices and new delivery terms as set out by the Seller.