These conditions of sale (hereinafter Conditions of Sale) set forth the conditions and procedure for the legal relationship between OÜ ELKE MÖÖBEL (hereinafter Seller) and its contractual partner who purchases furniture, lightning and other interior design goods and related transport and installation services (hereinafter Goods) from Seller (hereinafter Buyer).
These Conditions of Sale shall be applicable for all Buyers provided that Seller and Buyer (hereinafter jointly Parties and each separately Party) have not in writing or in a format which can be reproduced in writing agreed upon otherwise.
In addition to these Conditions of Sale, the legal relationships between the Parties shall be governed by the offer, as presented by Seller and confirmed by Buyer under Section 2 of these Conditions of Sale, and the laws of the Republic of Estonia.
In case of a conflict between the Conditions of Sale and the offer, presented by Seller and confirmed by Buyer under clause 2 of the Conditions of Sale, the provisions in the offer confirmed by Buyer shall have priority over the Conditions of Sale.
2. PRESENTING AND CONFIRMING THE OFFER
The offer, drawn up by Seller and presented to Buyer in writing or in a format which can be reproduced in writing (incl. e-mail) which is thereafter confirmed according to the provisions below, forms the basis of the legal relationship between the Parties. Seller’s offer is valid for a term specified in the offer. If no term has been given in the offer, the offer shall be valid for 30 days from the forwarding to Buyer.
If the offer contains an obligation for an advance payment, the offer shall be deemed as confirmed upon receipt of the advance payment by Seller. If the offer does not contain an obligation for an advance payment, the contract shall be deemed as concluded and Seller shall have an obligation to sell and deliver the Goods under the offer upon the confirmation of the offer by Buyer. If possible, Buyer shall confirm the offer in a format which can be reproduced in writing (via e-mail). With the confirmation of the offer Buyer agrees to the Conditions of Sale.
With the confirmation of the offer in accordance with Clause 2.2 of the Conditions of Sale Buyer’s order shall be deemed valid and binding and the delivery period shall commence. Subsequent waiver from the offer shall give Seller a right to apply all the legal remedies provided in Clause 4.8.
If the offer is confirmed under Clause 2.2 after the offer’s validity term referred under clause 2.1, but not later than within 14 days from the end of the term validity, the contract is deemed concluded but Seller is entitled to withdraw from the contract within 5 working days from the late confirmation of the offer with a statement in a format which can be reproduced in writing. If Buyer has made an advance payment, Seller shall return the payment within 14 at the latest from the forwarding of the statement of withdrawal. If the offer is confirmed more than 14 days after the end of the offer’s validity term, the confirmation shall carry no legal significance and the contract between the Parties does not take effect.
The offer, and the included or annexed photos, drawings and calculations, are Seller’s and its partners’ intellectual property. Without a prior written consent from Seller, Buyer is not entitled to copy the aforementioned, forward it to third persons or use it for any other purpose than for assessing the confirmation of the offer.
If Buyer’s order also contains installation and Buyer has presented its own vision of the installation of the goods (for example, site plan, etc.) or presented other information which serves as basis for its order and is taken into consideration by Seller when drawing up the offer, then such documents form an integral part of the offer. Buyer is liable for the rightfulness of the aforementioned documents and shall ensure and be responsible that these do not violate any third parties’ rights.
3. DELIVERY PERIOD
Delivery period of the goods is up to eight (8) weeks from the confirmation of the offer under Clause 2.2. However, the delivery period provided here is informative in nature and is not legally binding for the Parties. Binding delivery periods are usually provided in the offer. If the delivery period includes the usual collective vacation period at the factory of the Goods’ manufacturer (i.e. from the beginning of July till end the of August or from the mid-December till the mid-January), Seller is not able and will not provide a biding delivery period, but Seller shall use its best efforts to fulfil Buyer’s order within the period stated in the offer, except if the Parties have expressly agreed upon a legally binding delivery period regardless of the vacation period at the factory.
If there are any impediments (including the activity or inactivity of Seller’s contractual partners or Buyer) which are beyond Seller’s control and hinder the timely fulfilment of the order by Seller, Seller shall not be liable for the delay in the delivery of Goods due to the aforementioned and the deadline for the delivery of the Goods shall extend by the number of days when Seller’s performance was hindered due to the aforementioned reasons, or by any other time period which due to the aforementioned impediments is necessary for Seller to be able to deliver the Goods. Seller shall notify Buyer of this prolongation of the delivery period immediately upon becoming aware of the grounds for the prolongation of the delivery period by notifying both the reasons for the prolongation as well as the new delivery time.
If the impediment under Clause 3.2 is independent from Buyer and Buyer justifiably loses interest to the Goods due to the extension of the delivery period, Buyer is entitled to withdraw from the order by forwarding a respective statement to Seller in a format which can be reproduced in writing within 3 working days from becoming aware of the extension of the delivery period. If Buyer has made an advance payment, Seller shall return the payment within 14 days at the latest from the receipt of Buyer’s statement of withdrawal. If Buyer fails to notify Seller of its non-acceptance of the new delivery period during the aforementioned period, Buyer is deemed to have accepted the new delivery period.
4. DELIVERY OF GOODS
Seller shall deliver the Goods to Buyer on the last day of the delivery period stated in the offer or extended under Clause 3.2 at the latest. Seller shall notify Buyer if the Goods are ready for delivery and the Parties shall coordinate the exact date and time of the delivery.
Buyer is entitled to withdraw from the contract if the delivery of the Goods is more than 30 days in delay from the delivery date stated in the offer or extended under Clause 3.2 due to circumstances attributable to Seller by submitting to Seller a respective statement in a format which can be reproduced in writing. In case of a withdrawal in the aforementioned procedure, Seller shall return to Buyer all already made advance payments as provided in Clause 3.3 and, in addition, Buyer is entitled to demand from Seller a contractual penalty in the amount of 20% of the price of the Goods not properly delivered.
Seller shall hand over to Buyer all documents related to the Goods (incl., depending on the Goods, installation, maintenance and user manuals, manufacturer’s guarantee terms if these have been provide by the manufacturer on paper, etc.).
Goods shall be delivered at the location agreed upon in the offer. If the delivery of the Goods has been agreed upon to take place other than at Seller’s store, then Seller shall organise and be responsible for the transport of the Goods to the agreed upon location and shall bear all risks and costs associated with the transport provided that the offer does not stipulate otherwise.
If the Parties have agreed that the installation of the Goods will be done by Seller, then Buyer must ensure passage, which is sufficient in size, and adequate space at the installation area, as well as suitable conditions for the installation works (in the foremost, full constructional readiness of the rooms, adequate free and safe space for the provision of service, sufficient room temperature, adequate lighting and the existence of electricity in order to use electrical equipment).
Person who takes delivery of the Goods on behalf of Buyer shall confirm the receipt of the Goods and related documents, and the installation services if Parties have agreed on it, by signing the copy of the offer, delivery note, transport documents and other such documents at Seller’s possession.
If the offer does not provide otherwise, then Buyer must take delivery of the Goods within 10 days at the latest from Seller’s notification that the Goods are ready for delivery. If Buyer has not taken delivery of the Goods within the aforementioned period, then Seller is entitled to demand from Buyer a contractual penalty in the amount of 0.05% for each day of delay on the price of the Goods not properly delivered in order to cover the storing expenses of the Goods.
If Buyer has not taken delivery of the Goods within 30 days at the latest from Seller’s notification that the Goods are ready for delivery, then Seller is entitled to withdraw from the contract by forwarding to Buyer a respective statement in a format which can be reproduced in writing and thereafter sell the Goods to third persons. In case of withdrawal in the aforementioned procedure, Buyer must pay to Seller a contractual penalty in the amount of 20% of the price of the Goods not properly accepted. If Seller’s loss due to the non-acceptance of the Goods exceeds the aforementioned amount of the contractual penalty, then Seller is entitled to recover damages in the exceeding amount. Seller is entitled to set off its claim for contractual penalty and/or its claim to recover damages with the advance payment made by Buyer to Seller, the remaining part of the advance payment will be returned to Buyer in accordance with Clause 2.4.
5. BUYER’S DUTY TO INSPECT THE GOODS
Buyer shall upon receipt immediately inspect the Goods. Buyer will immediately, but no later than within 5 days after the delivery of the Goods to Buyer, submit to Seller via e-mail a complaint regarding the non-conformity discovered during the inspection (for example, if the Goods do not comply with the offer, there is an obvious defect, etc.). The notification must include the information in the offer, information concerning the Goods, description of the non-conformity, provided as accurately as possible, and photographs which reflect the non-conformity.
Seller shall reply to the complaint via e-mail within 10 days by stating its position concerning the con-conformity and/or possible further steps in order to identify the non-conformities and, in the existence of the non-conformity, steps to eliminate these. Failure to reply to Buyer’s notification does not constitute an acceptance of the non-conformity. Seller shall eliminate the non-conformities within a reasonable and technically possible time period.
If Buyer, who placed an order in its economic and professional activities, does not inspect the Goods in accordance with the aforementioned or fails to exercise necessary care during the inspection or fails to notify of the non-conformities in accordance with the aforementioned and the Goods contained a defect which could have been discovered during a proper inspection, then Buyer cannot later relay on this non-conformity.
The submission of complaints regarding the quality of the Goods, which arise after the inspection of the Goods, is to be carried out in accordance with Section 8 of the Conditions of Sale.
6. RISK OF ACCIDENTAL LOSS AND DAMAGE AND TRANSFER OF OWNERSHIP
The risk of accidental loss and damage to the Goods shall pass from Seller to Buyer on delivery of the Goods at the agreed upon location as provided in Section 4 of the Conditions of Sale. If Buyer fails to take delivery of the Goods at the agreed upon location and on the agreed upon time, the risk of accidental loss and damage is considered to have passed to Buyer.
If Parties have agreed on the installation of the Goods by Seller but the installation date does not correspond with the delivery date, then Buyer shall ensure the preservation of the Goods delivered to the agreed upon location in their original packaging until installation, and the risk of accidental loss and damages is on Buyer.
If according to the offer Buyer, or a carrier chosen by it, is responsible for the transport of the Goods, then the risk of accidental loss and damage shall pass from Seller to Buyer upon the delivery of the Goods to the carrier.
The title in the Goods shall pass from Seller to Buyer upon the fulfilment of the following conditions: (a) the Goods have been delivered to Buyer in accordance with Section 4 of the Conditions of Sale and (b) the Goods have been fully paid for and other payment obligations (for example, obligations to pay recoverable contractual payment or interest on arrears) have been fulfilled.
So long as the title has not been transferred to Buyer, Buyer shall:
Maintain the Goods in a prudent manner by avoiding loss and damage to them;
Refrain from transferring the title in the Goods to third persons; in case of a transfer of the possession of Goods, Buyer shall notify the recipient of Seller’s reservation of title;
Immediately notify Seller of all circumstances which might cause loss or damage to the Goods.
7. PAYMENT TERMS
The price of the Goods and payment terms, incl. the amount of the advance payment and payment deadlines, are stated in the offer. If the offer calls for an advance payment and/or the payment of the price in full before the delivery of the Goods, then the receipt of these respective payments serves as a pre-condition for the fulfilment of Seller’s obligations and Seller is not obliged to fulfil the order if the advance payment has not been paid nor deliver the Goods to Buyer if the price of the Goods has not been paid in full amount.
Buyer shall make payments under the submitted invoices to the bank account indicated in the invoices. The payments are deemed to be paid upon the receipt of the payments in the bank account. Buyer shall bear all costs related to the payments.
A delay with any of the monetary obligations prescribed for in the Contract shall give Seller a right to demand from Buyer interest on arrears in the amount of 0.05% for each day of delay on the overdue amount.
If Buyer is in delay with any of the payments related to the purchase of the Goods (sale price, interest on arrears, contractual penalty) for more than 30 days, then Seller is entitled to demand the purchased Goods from Buyer based on the retention of title in Clause 6.4 of the Conditions of Sale to be returned to it. Seller does not have to withdraw from the contract in order to recover the Goods. The recovery of Goods does not affect the right to claim interest on arrears under Clause 7.3.
Any payment made shall be considered to be a payment, irrespective of the explanation in the payment order, for the following payables in the order as provided here: contractual penalty, interest on arrears, expenses incurred due to the recovery of arrears and, finally, money still owed for the Goods, irrespective of the explanation in the payment order.
Seller provides Buyer with a guarantee on the conditions and with the term as issued by the manufacturer of the Goods (hereinafter Guarantee). The duration of the respective guarantee period will be stated in the offer. The Guarantee shall take effect upon the delivery of the Goods to Buyer.
Provided that the guarantee conditions established by the manufacturer of the Goods and the requirements in these Conditions of Sale have been fulfilled, then Seller shall, on the conditions and in the form as prescribed below, to eliminate the defects revealed during the ordinary and prudent use of the Goods.
If a defect covered by the Guarantee reveals itself during the guarantee period, then Buyer shall notify Seller of the defect via email within 14 days at the latest from the discovery of such. The notification must include information in the offer, information of Goods and a description of the non-conformity, provided as accurately as possible, and photographs which reflect the non-conformity.
Seller shall, at its own expense, eliminate the defects covered by the Guarantee (i.e. upon Seller’s choice either replace the Goods or the defective detail, or repair it) within a commercially and technically possible and reasonable time upon receipt of a respective notification from Buyer or the results of the expertise carried out in accordance with Clause 8.10 have been revealed.
Upon the replacement of the Goods or a detail, Seller is entitled to demand that Buyer return to Seller the title in the replaced Goods or detail provided that Seller bears the associated costs for transport.
The Guarantee given to Buyer is valid only if all the aforementioned conditions have been fulfilled; if the required conditions are not fulfilled, the Guarantee will terminate and the defect will no longer be covered by the Guarantee:
Goods have been installed in a professional manner and in accordance with the relevant installation instructions, provided that the manufacturer has compiled and forwarded to Seller such installation instructions, without damaging the Goods in any manner. If the instalment service has been purchased from Seller, the aforementioned condition is deemed to be fulfilled;
The maintenance of the Goods (leather surfaces, for example) has been carried out in a regular basis and in a professional manner according to the maintenance instructions provided by Seller;
Goods have been used only for purpose that they are intended for, in a prudent manner, in accordance with the user manuals and only under normal operating conditions (i.e. they have not been used in more demanding situations where there exists excessive moisture, dryness, heat or coldness, etc.);
Buyer has fully paid for the Goods to Seller;
The Goods have not been independently repaired, altered or modified in any other manner by Buyer or a third person.
The Guarantee does not apply in the following circumstances and all expenses associated with the elimination of such non-conformities will be borne by Buyer:
The non-conformity of the Goods is due to normal wear and tear and/or colour fading;
The non-conformity of the Goods is due to circumstances other that production defect, incl. use for purposes other than intended for or with wrong maintenance tools and techniques or due to any other external force (for example, blow, pressure or some other mechanical injury, chemical substance, environmental problem, incl. excessive moisture, dryness, heat, etc.) or due to a force majeure event (incl. natural disasters);
Buyer has not complied with the notification procedure, incl. deadline, for non-conformities as prescribed in these Conditions of Sale.
The Guarantee does not cover the differences in the texture and colour shading of furniture covered with natural veneer, or any other characteristics owed to the material of the Goods. In addition, the Guarantee does not cover the example products displayed at Seller’s showroom – if Buyer wishes to purchase the example products, it bears the risk that the examples have already been in use and therefore are not covered by the Guarantee, except when the offer clearly provides a Guarantee for the example products.
The repair of the Goods takes place at the same location where the Goods where delivered. Seller is entitled to, at its own expense, transport the Goods for large-scale works to a workshop of its own choosing.
Seller shall within 20 days upon receipt of the notification from Buyer, as prescribed in Clause 8.3, adopt a position whether the non-conformity of the Goods is covered by the Guarantee. If a dispute regarding the Guarantee arises between the Parties, then Buyer is entitled to demand the inclusion of an independent expert. If the independent expert is of the opinion that the non-conformity of the Goods is not covered by the Guarantee, then the costs related to the work of the independent expert will be borne by Buyer, otherwise by Seller.
If Seller, despite being notified twice by Buyer, does not comply with its obligations under the Guarantee, then Buyer is entitled to eliminate the non-conformities in the Goods at Seller’s expense. Buyer shall notify Seller via e-mail of the commencement of the repair or replacement of the Goods at least 5 working days in advance by forwarding a calculation of the estimated reasonable expenses and giving Seller an opportunity to eliminate the non-conformities.
The Guarantee does not limit nor restrict the consumer rights under the Law of Obligations Act (võlaõigusseadusest) or under other legal acts. If the law imperatively prescribes for broader rights to Buyer as a consumer, then Seller must comply with these rights and follow the obligations.
Parties are held liable for their failure to fulfil their obligations in accordance with the provisions and procedure of these Conditions of Sale and applicable laws.
Seller is held liable for the damage incurred due to a breach of its obligations with fault. Seller shall compensate direct material damage incurred due to the breach that is documentary evidenced. Loss of income, non-pecuniary damage and indirect damage (incl. damage incurred due to disruption in Buyer’s economic activities, loss of opportunity to conclude a contract or opportunity to gain profit in some other manner, damage to third persons, etc.) will not be compensated by Seller to Buyer, except when the imperatively provided by law. Seller’s liability (incl. the total sum of Buyer’s claims) is limited to the amount equal to the purchase price paid to Seller for the Goods. The contractual limits to liability are not applicable if Seller breaches a contractual obligation with intent or gross negligence.
If Buyer has a legal basis to present claims against Seller due to manufacturer’s liability imperatively prescribed by law (i.e. manufacturer’s liability for a defective product) and Buyer present a claim against Seller, then Buyer shall, upon Seller’s request and at its own expense, do everything possible, incl. present necessary documents, evidence and needed assistance in order for Seller to be able to present the claim to the person who manufactured or was shown as the manufacturer of the Goods or to the person liable under the manufacturer liability provisions.
Claims for interest on arrears and contractual penalties as prescribed in the Contract must be submitted within 3 (three) months at the latest from the emergence of such a right. The right of claim expires after this deadline.
10. FORWARDING NOTICES
All notices and other communication will be forwarded in Estonian to the contacts provided in the offer. Party shall immediately notify the other Party of any chances in the contacts.
1. APPLICABLE LAW AND JURISDICTION
The legal relationship between the Parties is subject to the laws of the Republic of Estonia. Disputes between the Parties will be attempted to be resolved by means of negotiations. If the negotiations fail, the disputes will be resolved at Harju county court.
12. PUBLICATION AND MODIFICATION OF CONDITIONS OF SALE. PRINCIPLES OF INTERPRETATION
Seller’s Conditions of Sale can be accessed from the showroom located at Tedre 55, Tallinn, and from Seller’s website elkemoobel.ee.
Seller is entitled to unilaterally change these Conditions of Sale. Changes to the Conditions of Sale will take effect upon their publication on Seller’s webpage elkemoobel.ee. If Seller’s offer has been submitted to Buyer before the changes to the Conditions of Sale have taken effect, the Conditions of Sale in force at the time when the offer was submitted will be applied.
Words used in the Conditions of Sale in singular may include the plural and vice versa. Clauses and sub-clauses in the Conditions of Sale will be interpreted together with other clauses of the Conditions of Sale and provisions in the offer. Sub-headings as used in these Conditions of Sale are for ease of reference only and shall not have any legal effect to the interpretation of the content
If any provision of these Conditions of Sale is deemed to be totally or partly invalid or unenforceable, this will not cause invalidity of the sales contract between the Parties or the invalidity of the rest of these provisions. Parties will make their best efforts to replace any invalid provision with the provision that complies with the applicable law
These Conditions of Sale take effect from 01.11.2014.