Terms and Conditions
Version 1.0.3, March 22nd, 2020
Article 1 Definitions
- In the present General Terms and Conditions, unless explicitly indicated otherwise, the following definitions shall apply:
- shall mean Superpencil, a private limited company (OÜ) organized under the laws of Estonia.
- shall mean the individuals or companies that have engaged Superpencil for the services to be rendered by Superpencil.
- shall mean the Agreement between Superpencil and Client for the services to be rendered by Superpencil.
- Terms and Conditions
- shall mean the present General Terms and Conditions, and as from time to time may be amended by Superpencil.
Article 2 General
- The Terms and Conditions shall apply to each and every offer, tender and Agreement whereby Superpencil delivers services of any nature to the Client, insofar as parties have not explicitly deviated from the Terms and Conditions in writing.
- The Terms and Conditions shall also apply to all other agreements with Superpencil, the performance of which calls for the services of third parties.
- Exceptions or waivers from the Terms and Conditions shall only be valid if given in writing by Superpencil and have been explicitly agreed upon in writing by both parties.
- All intentions of purchase, engagement, offers, or conditions by the Client or by any third party shall not be deemed as an acceptance by Superpencil, unless such purchase, engagement, offer, or condition is explicitly accepted by Superpencil in writing.
- In case of conflict between the interpretation of these Terms and Conditions and the Agreement, the meaning of the Terms and Conditions shall prevail.
- If one or more stipulations in the Terms and Conditions should be null and void or declared null and void, then the other stipulations of the Terms and Conditions shall remain fully applicable and in full force. As for the provisions that have been determined to be null and void, Superpencil and Client shall enter into negotiations to agree upon new stipulations replacing the null and void Conditions, or, as the case may be, the Conditions declared null and void, whereby the purpose and the meaning of the original Conditions shall be applied to the extent possible.
- Superpencil reserves the right to modify the Terms and Conditions with immediate effect by means of written notification to the Client.
Article 3 Offers and Tenders
- All offers and tenders of Superpencil are non-binding and shall be valid for a period of 30 days, unless indicated otherwise. Superpencil shall only be bound by the offers if the acceptance thereof is confirmed in writing by the offeree within 30 days from the offer, unless indicated otherwise.
- The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of the other expenses to be incurred within the scope of the Agreement, including shipping and administrative costs, unless Superpencil indicates otherwise.
- If the Client changes the terms of the offer in its acceptance (on secondary items) from the offer given, Superpencil shall not be bound by the changes made and the acceptance shall be deemed to only reflect the original offer, unless Superpencil indicates otherwise.
- A quotation which includes break-downs shall not oblige Superpencil to execute part of the assignment against a corresponding part of the given quotation. Upon acceptance, the Client is deemed to have accepted the entire offer.
- Offers and tenders are only applicable to the assignment being discussed and shall not apply to future assignments.
Article 4 Performance of the Agreement
- Superpencil shall execute the Agreement to the best of his knowledge and ability.
- If required for the proper performance of the Agreement, Superpencil shall have the right to have certain work done by third parties without prior consent from the Client.
- The Client shall ensure that Superpencil shall be provided when due with all necessary items and information which Superpencil has said to be necessary or which the Client must in all reasonableness understand to be necessary to perform the Agreement and client takes care that the items and information are usable by Superpencil. If Superpencil has not been provided in due time or not according to the arrangements made, with the items and information necessary to perform the Agreement or if Client will not observe its obligations in any other way, Superpencil shall have the right to suspend the performance of the Agreement and/or to charge the Client for the additional costs resulting from the delay at the generally accepted rates.
- Superpencil shall not be liable for damages caused by the fact that Superpencil worked on the basis of incorrect and/or incomplete information and/or items provided by the Client.
- If parties have agreed that the Agreement will be performed in stages, Superpencil can suspend the performance of the parts belonging to a following stage until the Client has approved in writing the results of the stage prior to it.
- If Superpencil or third parties engaged by Superpencil within the scope of the assignment (the "Service Providers") are required to work at Client's site or at a site designated by Client, Client shall provide the Service Providers, free access to all facilities needed in order for the Service Providers to perform the terms of the Agreement.
- Client shall safeguard and indemnify Superpencil against and from possible claims filed by third parties who may sustain damage attributable to Client's actions in connection with the performance of the Agreement.
Article 5 Changes to the Agreement
- If it appears, while performing the terms of the Agreement, that the work to be done needs to be changed and supplemented in order to ensure its proper performance, Superpencil shall inform the Client and explain why the changes are necessary and the parties shall amend the Agreement accordingly in due time and through mutual consultations. If the Client does not agree with the necessary changes, then Superpencil has the right to terminate or suspend the Agreement in accordance with Article 12 and article 13 of these Terms and Conditions.
- The Client accepts that as a result of any change in or extension of the Agreement, the agreed or expected time of completion of the obligations may be extended. Superpencil shall inform the Client thereof as soon as possible the new expected time of completion.
- The Client accepts that as a result of any change in or extension of the Agreement, Superpencil may incur financial consequences and/or quality variations. Superpencil shall inform the Client thereof on a timely basis of any changes in this effect.
- If a fixed fee has been agreed upon, then Superpencil shall indicate the degree to which the change or supplement to the Agreement will result in an increase of said fees.
- In the event that Superpencil, at the request of or with the prior consent of the Client has undertaken any work which are outside the content or scope of the agreed activities, these performances or deliveries shall be reimbursed by the Client to Superpencil in accordance with the usual tariffs charged by Superpencil.
- In the event of any cost-increasing circumstances, Superpencil shall notify the Client thereof as soon as possible.
- Any cost-increasing circumstances that are not caused by Superpencil shall be deemed as additional work. Amendments to the Agreement shall only be done by prior written consent of both parties where the change in the scope of the products or services to be delivered and the increase in fees can be determined or estimated.
- Notwithstanding what is stated in the conditions of paragraph 3, Superpencil shall not be able to charge additional costs if the change or supplement is caused solely by Superpencil.
Article 6 Duration of the Contract; Term of Execution
- The Agreement between Superpencil and a Client shall be entered into for an indefinite period of time, unless the nature of the Agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
- If a term has been agreed upon to complete certain work within the term of the Agreement and if the term has been exceeded by Superpencil, then this shall never be deemed a default per se by Superpencil. The agreed-upon term shall not be a term to be observed on penalty of forfeiture of rights. If the term of execution is exceeded, the Client must consequently declare Superpencil to be in default in writing.
Article 7 Fee
- Parties can agree upon a fixed fee upon the execution of the Agreement. This fixed fee will be based on normal working hours.
- If no fixed fee has been agreed upon, the fee shall be determined on the basis of the number of hours actually spent on the work. The fee shall be calculated in accordance with Superpencil' usual hourly rates, valid for the period in which the work is being done, unless a different hourly rate has been agreed upon. Invoicing shall take place in arrears on the basis of actual costs and time actual spent.
- All fees, rates, offers and estimated costs shall be exclusive of VAT
- With respect to assignments with a duration of more than one month, the costs due and payable shall be charged periodically.
- If Superpencil and the Client agree upon a fixed fee or an hourly rate, Superpencil shall nevertheless be entitled to increase this fee or rate.
- Superpencil shall be allowed to charge the Client on fee increases, if changes in fees have occurred between the time of offer and the time of delivery with respect to circumstances dictated by law ( e.g., salaries, wages, and any other changed circumstances if such increase is allowed by law or if Superpencil is obligated to increase the price by (virtue of) law.
- Superpencil shall furthermore be able to increase the fee when it is shown during the performance of the work that the volume of work initially agreed upon or expected when the Agreement was concluded increased, and this increase in volume is not caused by Superpencil. In that case Superpencil shall notify the Client in writing of the increase in fees or the hourly rate.
Article 8 Payment
- Payment must be made within 14 days from the date of invoice, in accordance with the way indicated by Superpencil and in the currency in which the invoice was made. Contestation of the amount of the statements of expenses shall not suspend the fulfillment of the payment obligation.
- If Client fails to fulfill his payment obligation within the term of 14 days, then Client shall be in default by operation of law. In that event, Client shall owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated as from the day the Client is in default until the moment has paid the amount in full.
- Superpencil' claims against Client shall become due on demand in the event that Client's company is wound up, attached, declared bankrupt, or if a suspension of payment is granted.
- Superpencil has the right to charge a credit limitation surcharge of 2% on the principal sum. This surcharge will be charged if payment is not made within 21 days from the date of invoice.
Article 9 Retention of Title
- All goods delivered by Superpencil, including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain the sole and exclusive property of Superpencil (the "Retention of Title") until Client has fulfilled all of his obligations under all Agreements concluded with Superpencil.
- Client shall not be authorized to pledge or encumber in any way the goods falling under the Retention of Title.
- If third parties seize goods delivered subject to Retention of Title or wish to establish or assert a right to the goods which still belong to Superpencil, Client shall have the obligation to inform Superpencil thereof immediately.
- The Client shall undertake to insure the goods delivered subject to Retention of Title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on demand by Superpencil.
- In the event that Superpencil wishes to exercise his ownership rights mentioned in the present article, Client shall give Superpencil or third parties to be appointed by Superpencil, at anytime, unconditional and irrevocable permission to access all sites and locations where Superpencil property might be found and to take these goods back.
- Superpencil shall reserve the right to display all goods delivered, as mentioned under 1. of the present article, as part of the Superpencil' portfolio.
Article 10 Collection Charges
- If the Client fails to fulfill his obligations (in due time) or defaults on them, then Client shall be responsible for all reasonable out-of-pocket costs and expenses, including but not limited to legal fees and disbursements, extrajudicial fees and disbursements and any expenses incurred in the effort to collect and enforcing the debt). If the Client remains in default of payment as from the date the invoice is due, Client incurs an immediate payable fine of 15% on the amount due at that moment. This with a minimum penalty of EUR 50 regardless of the amount due and owing.
- The Client shall be responsible for all judicial and execution costs incurred by Superpencil.
- The Client shall owe interest over the collection charges.
Article 11 Inspection and Complaints
- The Client must notify Superpencil in writing of complaints about the work done within 8 days following their detection, but no later than within 14 days following completion of the work concerned. The notice of complaint must give as much detailed a description as possible of the shortcoming, so that Superpencil is in a position to respond adequately.
- If a complaint proves to be well-founded, Superpencil shall do the work as agreed upon, unless such has become demonstrably useless in the meantime to the Client. The Client must notify Superpencil in writing if the latter is the case.
- If it is no longer possible or useful to still do the work with respect to the provision of services agreed upon, Superpencil shall only be liable within the limits as stated in Article 15.
Article 12 Cancellation
- Both parties shall be entitled to cancel the Agreement at all times in writing with a notice period of one month.
- Client shall be liable to pay for all the invoices for the work done up and until the termination, even in the case of early termination of the Agreement.
- If an early termination of the Agreement is made by Superpencil, Superpencil shall cooperate with the Client to ensure that the work still to be done be transferred to third parties, unless the termination is based on facts and circumstances which can be attributed to Client.
- If the transfer of the work still to be done entails extra costs for Superpencil, said costs shall be charged to Client.
Article 13 Suspension and Dissolution
- Superpencil shall be authorized to suspend the fulfillment of the obligations under the Agreement or to terminate the Agreement with immediate effect, in part of in whole, in the event that:
- Client does not fulfill or does not fully fulfill his obligations resulting from the Agreement;
- after the Agreement has been signed, Superpencil learns of circumstances giving good ground to fear that the Client will not fulfill his obligations;
- Client was asked to furnish security to guarantee the fulfillment of his obligations resulting from the Agreement when the Agreement was signed and that this security is not provided or proves to be insufficient.
- Superpencil shall furthermore be authorized to terminate the Agreement (have the Agreement terminated) if circumstances arise of such a nature that fulfillment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the Agreement can no longer be demanded in all reasonableness.
- If the Agreement is terminated, Superpencil' claims against the Client shall be forthwith due and payable. If Superpencil suspends fulfillment of his obligations, he shall retain his rights under the law and the Agreement.
- If the Agreement is terminated, Superpencil' claims against the Client shall be forthwith due and payable. If Superpencil suspends fulfillment of his obligations, he shall retain his rights under the law and the Agreement.
- Superpencil shall always retain the right to claim complementary damages.
Article 14 Return of Goods Put at Client's Disposal
- If Superpencil has put goods at Client's disposal during and in connection with the performance of the Agreement, Client shall be obligated to return the delivered goods, in their original state, free of defects and in their entirety, within 14 days after written request by Superpencil. If Client fails to fulfill this obligation, all resulting damages and costs, wherein the costs of substitution shall be at Client's expense.
Article 15 Liability
- Should Superpencil be liable, then said liability shall be limited to the stipulations of the present conditions stated in this Article 15.
- Superpencil' liability based on the shortcoming in the performance of an agreement will only arise if the Client notifies Superpencil immediately and properly of such shortcomings, stating a reasonable term to rectify the shortcoming. A default by Superpencil can only occur if the shortcomings stated by Client can reasonably be rectified and within the obligations of the Agreement and that Superpencil continues to not comply or refuses to comply with such obligations.
- Superpencil total liability, for whatever reason, shall be limited to the payment of the direct damages up to a maximum of twice the amount of the statement of expenses as invoiced, at any rate the fee of that part of the assignment to which the liability relates, at any rate to a maximum of Ten Thousand Euros (EUR 10000). Superpencil' liability shall at all times be limited to a maximum equal to the amount of the payment to be made by Superpencil' insurer in the occurring event.
- In the event of an assignment with a duration of more than 6 months, the liability shall, contrary to the stipulations under paragraph 3 of the present article, furthermore be limited to the part of the fee still due for the last six months, at only to the part of the assignment to which the liability relates.
- Direct damage shall be understood to be exclusively:
- The proven reasonable costs incurred to establish the cause and the volume of the damage, in so far as said establishment relates to direct damage in the sense of the Terms and Conditions;
- the proven reasonable costs possibly incurred to have Superpencil' faulty performance meet the Conditions of the Agreement, unless such faulty performance cannot be attributed to Superpencil. This damage, however, shall not be compensated for in the event that the agreement is terminated;
- the proven reasonable costs incurred to prevent or limit the damage, in so far Client demonstrates that said costs have led to the limitation of direct damage as meant in the present general Terms and Conditions.
- Superpencil shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
- The limitations of liability for direct damage contained in the Terms and Conditions shall not apply if the damage is due to intentional act on the part of Superpencil or his subordinates.
- The condition for the creation of any right to the payment of damages shall be that the Client notifies Superpencil of such damage as soon as possible and at the latest, within one year from the occurrence of the claimed damages.
Article 16 Safeguarding and Indemnification
- The Client shall indemnify Superpencil against any and all claims filed by third parties concerning intellectual property rights on material or data provided or items by the Client, which shall be used for and during the performance of the Agreement.
- If the Client provides Superpencil with information carriers, electronic files or software etc., the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.
Article 17 Transfer of Risk
- The risk of loss of, or damage to the goods being the subject of the Agreement, shall be transferred to Client the moment said goods are judicially and/or actually delivered to Client and therefore fall into the power of Client or of third parties to be appointed by Client.
Article 18 Force Majeure
- Parties shall not be obligated to fulfill any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action, or generally accepted practice.
- In addition to the provisions of the law and the judge-made laws, in this respect, force majeure shall in the Terms and Conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which Superpencil cannot have any influence but which prevents Superpencil from fulfilling his obligations. Strikes by employees at Superpencil' company shall also be understood to be a circumstance of force majeure.
- Superpencil shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfillment of the obligation(s) impossible, commences after the point in time on which Superpencil should have fulfilled his obligation.
- Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfillment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to terminate the Agreement without any obligation to pay the opposite party damages and the parties shall be released immediately of all obligations under the Agreement, unless otherwise stated.
- Notwithstanding what is stated in paragraph 4 of this Article, insofar as Superpencil has already partially fulfilled his obligations resulting from the Agreement at the moment the circumstance of force majeure commenced or shall be able to fulfill them and insofar as separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, Superpencil shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively. The Client shall be held to pay this statement of expenses as if it were a separate Agreement.
Article 19 Secrecy
- Both parties shall be bound to secrecy of all confidential information they have received within the scope of their Agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information. The obligation to confidentiality shall end five years after the termination of the agreement, unless agreed upon otherwise.
- The Contracting Parties shall not disclose or have disclosed in any way directly or indirectly any information and/or data from the other Party or make such information and/or data available to any third party without the other Party's prior and explicit consent. If a statutory provision or a judicial decision compels parties to convey confidential information to third parties designated by law or by the court and the parties cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, the other party shall be informed immediately about this and the party shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the Agreement on the ground of any damage resulting from said circumstance.
Article 20 Intellectual Property and Copyrights
- Without prejudice to the other stipulations of the Terms and Conditions, Superpencil shall reserve the rights and authorities to which Superpencil is entitled under the Copyright Act.
- All documents, such as reports, advice, Agreements, designs, sketches, drawings, software, etc., provided by Superpencil, shall be designated to be used by Client exclusively and must not be reproduced, made public or brought to the notice of third parties by Client.
Article 21 Samples and Models
- If a sample or model has been given to Client, then the assumption is that such has been given by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond with it.
Article 22 Non-employment of the opposite party's personnel
- Throughout the duration of the Agreement and for one year following termination thereof, Client shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of Superpencil or of enterprises whom Superpencil has engaged to execute the present Agreement and who are (were) involved in the performance of the Agreement, without prior permission of Superpencil on this matter. In the event that the Client violates the provisions contained in this article, it shall forfeit to the Superpencil an immediately payable penalty of EUR 1000 for each day on which the violation continues.
Article 23 Disputes
- The Estonian Court located in the Superpencil' place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. Superpencil shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
Article 24 Applicable Law
- Estonian law shall apply to each and every Agreement between Superpencil and the Client.
Article 25 Changes to the Terms and Conditions, interpretation and their Location
- The version valid at the time the Agreement was concluded shall always apply.
- The most recent version of the Terms and Conditions can be found at https://www.superpencil.com/terms.