Terms & conditions for exports
1. Description of Services. METALURGICA SKYMSEN, LTDA., (the “Seller”) is in the business of manufacturing commercial processing equipment (the “Products”). The Services include (a) Seller’s Website found at www.skymsen.com (the “Website”); (b) the services provided by the website; and (c) the Products.
2. Application. Purchase of any products sold by METALURGICA SKYMSEN, LTDA. (“Seller”) shall be subject to and expressly limited by the terms and conditions contained herein, except when Seller has signed separate contract with exceptions expressed to the present Term. No modification of any of these terms and conditions shall be effective unless agreed to in writing and signed by Seller. Seller reserves the right at any time without notice to amend these terms and conditions, given that the purchase by the Buyer of Products offered after the date of any amendment will constitute its express acceptance of such amended terms and conditions. Seller reserves the right to stipulate special Terms and Conditions for certain products.
3. Acceptance of Terms. Buyer acknowledges and agrees that these terms and conditions supersede the terms and conditions of any purchase order or other documentation used by Buyer and, except for delivery and billing addresses, quantities prices and items ordered, any conflicting or additional terms are void and have no effect. Buyer may place orders by use of purchase orders and other documentation for its convenience purposes only. By placing orders with Seller, Buyer acknowledges that has read, understood and agrees to be bound by Seller’s Terms and Conditions and all applicable laws and regulations. If Buyer does not agree with the foregoing Terms and Conditions of Seller, Buyer may not use Seller’s Services.
4. Website Disclaimers. The Website’s entire content is provided “as is,” “as available,” and “with all faults.” Seller expressly disclaims any and all warranties with respect to the Website and any content accessible within or through the Website, express or implied, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement. Links or logos from other companies appearing on the Website do not imply endorsement by Seller of such website, logo, or linked content. Seller is not responsible for any content linked to the Website. Use of any such linked content is at Buyer’s own risk.
5. Orders, Shipment, Title and Risk of Loss. All orders from Buyers, whether solicited and written by either a Seller Sales Representative, distributor or dealer, are deemed offerings to purchase until accepted by Seller. Seller reserves the right to accept orders in full or in part. Acceptance may be either by written confirmation or by shipment of the order, in full or in part. The purchase orders will be shipped FOB Seller’s shipping point unless otherwise agreed between the parties, with the title and risk of loss passing to Buyer upon delivery of Products to carrier.
6. Warranty. The equipment manufactured by Metalúrgica Skymsen Ltda., is covered with warranty against manufacturing faults for the period of 12 (twelve) months, considering one work shift for the intermittent and commercial use of the product, (that is, 03 (three) months are the Brazilian legal term and 9 (nine) months are added for the supplementary period granted by Metalúrgica Skymsen Ltda.), considered from the shipment date. To award the warranty, it is necessary to request the International Warranty. The components which eventually show manufacturing faults within the period of the warranty will be supplied free of charge. However, it is necessary to request the International Warranty. The components which are proved to have manufacturing faults will be made available Ex-Works Brusque/SC/Brazil. This warranty shall not apply if damage occurs from improper installation, wrong voltage, nor to the extent that products or parts have been used other than in conformance with operating and maintenance instructions, subjected to misuse or abuse or damaged by accident, acts of God, abnormal use or stress or any other matter unrelated to Seller, and beyond its reasonable control, otherwise or altered or modified by third parties. In addition, this warranty does not cover normal wear and tear of certain items, such as but not limited to, blades, stones, chopper cutting knives, plates, slicing knives, cutting disc, gaskets, oil changes, sealing tape, heat seal wires, worm gears, and other parts expendable by nature and that need to be replaced frequently. This warranty excludes all oral, statutory, express or implied warranties, which may be applicable to Seller, including, but not limited to, any implied warranty of merchantability and fitness for particular purpose. Under no circumstances shall Seller be liable for loss of use, revenue or profit or for indirect or consequential damages. The sole and exclusive remedies to the Buyer in case of proven manufacturing defaults will be those expressively foreseen in the paragraph above. Seller reserves the right to change the terms of its limited warranty at any time without any prior notice. It also reserves the right to change the design and specifications of its equipment or any related documentation at any time. The Buyer is not entitled to upgrades or refunds resulting from these changes. Seller reserves the right to inspect any product alleged to have a manufacturing defect. The 12-month warranty period does not apply to products manufactured by third parties. Seller makes no other express or implied warranties or conditions, with respect to products manufactured by third parties. Products manufactured by third parties are solely covered by the third-party manufacturer´s warranty.
7. Limitation of Liability. Seller will not be liable to Buyer or any third party for (a) any indirect, incidental, special, exemplary, consequential, or punitive damages, including lost profits, lost sales, or lost business; or (b) for any direct damages, costs, losses, or liabilities, including, but not limited to, property damages or personal injury. Buyer expressly acknowledge and agrees to this limitation of liability together with the other provisions of these Terms and Conditions. The provisions of this clause are understood by Buyer and its third parties, and the responsibilities hereunder are outlined and limited, which Buyer hereby acknowledges and accepts together with the other provisions of these General Terms & Conditions.
8. Indemnification. Buyer agrees to defend, indemnify and hold harmless Seller and its employees, agents, representatives, directors and customers (each an “Indemnitee”) from any and all actions, suits, claims, demands, and proceedings (“Claims”), and any judgments, losses and damages, including punitive, debts, liabilities, penalties, fines, costs and expenses (including reasonable attorneys’ fees at all stages of litigation and appeal) resulting from or arising out of the purchase, sale, or use of the Product or otherwise from the relationship between Buyer and Seller, including but not limited to enforcement of the terms of Purchase Order, whether based in contract, tort, strict liability, misrepresentation, violation of applicable law or any cause whatsoever:
(i) brought or commenced by federal, state or local governmental authorities against any Indemnitee alleging that any Product shipped or delivered by Seller to or on the order of Buyer did not, as of the date of delivery, meet the warranty set forth in Section 6;
(ii) brought or commenced by any employee (statutory or other), agent, representative, officer and director of Buyer or its contractors, subcontractors, end users, and customers for personal injury, death or loss or damage of property arising out of or alleged to have arisen out of any occurrence or alleged occurrence on owned, leased, permanent, or temporary property or premises of Seller, whether or not such Claims are caused or alleged to be caused by the joint and/or concurrent negligence of Seller; provided, however, that Buyer’s indemnification obligation shall not apply to the extent that Claims are caused by the sole gross negligence of Seller;
(iii) brought or commenced by any person or entity against any Indemnitee for damages, including but not limited to, the injury, illness and/or death of any person, or loss or damage of property, arising out of or alleged to have arisen out of (a) the delivery, sale, resale, labeling, use or consumption of any Product, or (b) the negligent acts or omissions of Buyer; provided, however, that Buyer’s indemnification obligations hereunder shall not apply to the extent that Claims are caused by the gross negligence of the Indemnitee seeking indemnification. Notwithstanding the foregoing limitation on Buyer’s indemnification obligations, Buyer shall defend each Indemnitee for all Claims until such time that it is proven by clear and convincing evidence that the Claims are caused by the gross negligence of such Indemnitee; provided however, that Buyer’s defense obligations with respect to the remaining Indemnitees shall continue.
9. Severability. All the provisions of these Terms and Conditions are intended to be distinct and severable. If any provision is declared to be invalid or unenforceable in any jurisdiction, it shall be ineffective in such jurisdiction only to the extent of such invalidity or unenforceability. Such invalidity or unenforceability shall not affect the validity of the remainder of such provision, to the extent that it would not otherwise be invalid or unenforceable, nor render invalid or unenforceable such provision in any other jurisdiction. To the extent possible, any provision proven to be valid or unenforceable shall be reinterpreted to give effect to its original purpose.
10. Waiver. Seller’s failure to enforce any of the provisions or rights shall not be deemed or construed to be a waiver of any such provision or right, nor in any way to affect the validity of these Terms and Conditions or any provisions hereof or the right of Seller to thereafter enforce each and every right and provision. No waiver of any breach of any of the provisions of these Terms and Conditions will be effective unless set forth in a written instrument executed by Seller; any eventual lack of right execution by Seller against Buyer due to such breach shall not be construed or deemed to be at any circumstance a waiver of right or such breach forgiveness by Seller.
11. Waiver of Jury Trial. Seller and Buyer hereby knowingly, voluntarily and intentionally waive the right they may have to a trial by jury with respect to any claim based hereon, or arising out of, under or in connection with these Terms and Conditions and any agreement contemplated to be executed in connection herewith, or in respect of any course of conduct, course of dealing, statements (whether oral or written) or actions of any party.
12. Attorneys' Fees. If Seller utilizes the service of an attorney to enforce the provisions of these Terms and Conditions or files a lawsuit against Buyer as a result of any breach of these Terms and Conditions, Buyer shall reimburse Seller for all of its costs, including reasonable attorney´s fees, incurred at all stages of enforcement, litigation and appeal.
13. Force Majeure. METALÚRGICA SKYMSEN LTDA., shall not have liability for any damages or losses incurred by Buyer resulting from causes out of the control of METALÚRGICA SKYMSEN LTDA., including but not limited to, war, invasion, fire, flood, strike, transportation delays, or supplier delays. The acceptance of the products by the Buyer shall be deemed an express and complete waiver of all claims of loss or damage due to any delay.
14. Miscellaneous. These Terms and Conditions are continuing and shall be in full force and effect and shall be binding upon Buyer with respect to each and every Product shipped or delivered to or on the order of Buyer by the Seller and shall remain in full force in effect unless and until they are expressly modified in writing by the Seller.
15. Entire Agreement. These Terms and Conditions constitute the final, complete and exclusive agreement between the parties concerning the subject matter hereof and supersedes all prior agreements, understandings, negotiations, discussions, warranties, guaranties, whether written or oral, between the parties.
16. Prices. The prices are established by Seller, according to his criteria, in American Dollars, FOB (Free on Board) in the port of loading of Seller, unless otherwise stipulated, excluding amounts related to applicable duties that will be of Buyer’s entire liability. Unless otherwise stipulated, prices quoted will be subject to changes by Seller, without previous notice to Buyer, before his acceptance.
17. Delivery. The delivery dates are estimates and based upon regular market conditions at the time of quote and acceptance of Seller of the order placed by Buyer. The delivery will also depend on receipt by Seller of all information necessary to the order processing. Seller may extend delivery dates or, at his option, cancel orders, total or partially, without incurring any liability beyond refunding of any amount deposited or prepaid for the canceled order, or portion thereof.
18. Payment. The payment shall be executed by Buyer to Seller on the dates and lead-times agreed between the parties, at each order. Unless otherwise stipulated, all payments will be due according to lead-times contained in the Invoice and shall be remitted to the banking account specified by Seller in writing, without any reductions, deductions or retentions, except to those arising from legal obligations of Buyer in this sense. In case of delay, Seller reserves the right to charge Buyer a fee up to 1.5% of the amount due for each month of delay. The collection of the charge will not imply a provision of payment for lead-time extension by Seller.
19. Applicable Law and Arbitration. These General Terms and Conditions are ruled by and interpreted according to the applicable laws and regulations from Brazil’s Federative Republic, excluding the application of United Nations Convention over Purchase and Sale of International Merchandise. Any dispute or controversy arising due to or in connection with these General Terms and Conditions will be resolved by negotiation between the parties. In case solution is not achieved through negotiation, the dispute or controversy shall be submitted to Arbitration, before the Chamber of Mediation and Arbitration – ARBITAC, in Curitiba, Paraná, Brazil, as per ARBITAC’s standards and procedures, to an arbiter pointed by the Court.