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ARTICLE 1 –
OFFER AND ACCEPTANCE 1.1. The written acceptance by the Supplier of the Order or the commencement of performance of the Order by the Supplier shall constitute acceptance by the Supplier of the Order and these General Conditions of Purchase.
1.2. Any modification of these General Conditions of Purchase must be expressly accepted by the Purchaser in writing.
ARTICLE 2 –
OBLIGATIONS AND EXECUTION 2.1. The Supplier shall perform the Order in accordance with these General Conditions of Purchase. The Supplier shall provide the Purchaser with all information in connection with the Supplies as the Purchaser may from time to time reasonably require and shall promptly notify the Purchaser if at any time the Supplier is prevented or delayed or becomes aware of any circumstance which may prevent or delay it from performing any part of its Supplies.
2.2. The Purchaser reserves the right to modify the Order at any time. Any such modification will be made by a written amendment to the Order, signed by both parties.
2.3. The Supplier may not assign, transfer or subcontract the whole or part of the Order without the Purchaser’s prior written agreement, and the assignee’s, transferee’s or approved subcontractor’s (as appropriate) express written acceptance of General Conditions of Purchase, and any other provisions of the Order. Acceptance by the Purchaser of the transfer and/or subcontractor does not release the Supplier from his liability and obligations from the Order.
ARTICLE 3 –
DELIVERY 3.1. The Supplies shall be delivered DDP(Delivered Duty Paid) to the address specified in the Order. The title in the Supplies shall transfer upon their delivery to address shown on the Order. The risk in the Supplies shall pass to the Purchaser upon completion of delivery.
3.2. For the purpose of the Order, delivery shall only be deemed to have taken place when the Supplier delivers the goods (in terms of description, quality and quantity) at the address stipulated in the Order. A delivery slip containing the same information as the invoice, except for the price, must be provided by the Supplier in duplicate for every delivery made by the Supplier. The Order shall only be deemed to be complete when: (i) all Supplies have been delivered and/or provided in accordance with the Order and accepted by the Purchaser; (ii) all documents stipulated in the Order and/or all documents and certificates required for operating and maintaining the Supplies in compliance with regulations in force have been received and accepted by the Purchaser.
3.3. The Supplies shall be delivered on the date that appears on Order (in the absence of any date then time shall be of the essence for delivery of the Supplies). The Supplier may not deliver the Supplies (including partial and advanced delivery) to the Purchaser without the Purchaser’s prior written agreement. Supplies delivered without prior agreement of the Purchaser may be returned to the Supplier at its cost and risk.
ARTICLE 4 –
DELIVERY SCHEDULES – LATE DELIVERY PENALTIES If the Supplier fails to meet the delivery schedule but the Purchaser elects not to cancel the Order, the Purchaser may require the Supplier without giving formal written notice to pay liquidated damages equal to 1% of the value of the Order, tax excluded, per calendar day overdue, up to a maximum of 10% of the value of the Order per event. Liquidated damages may be automatically set off against all sums due from the Purchaser to the Supplier, whether or not such sums are due at the time the set off takes place. The liquidated damages are a pre-estimate of the Purchaser’s loss for Supplier’s failure to meet the Delivery schedule.
ARTICLE 5 –
PARTIAL DELIVERY – NON-CONFORMITY OF DELIVERY 5.1. If the Supplier only delivers a part of the Order or if only a part of the delivery complies with the Order, the Purchaser may, at its option apply the provisions of Article 4 just to those parts of the Order which are missing or which do not comply with the requirements of the Order.
5.2. In the event of a partial or non-compliant delivery, the provisions in this clause are without prejudice to the Purchaser’s ability to: (i) terminate the whole of the Order in accordance with Article 16; (ii) claim compensation for any damages, losses, costs or expenses that it has suffered as a result of the Supplier’s default; and/or (iii) Claim for the application of liquidated damages pro rata calculated on the total value of the Order, tax excluded.
ARTICLE 6 –
SERVICES TO BE PROVIDED BEFORE DISPATCH 6.1. The Supplier will give the Purchaser, as well as any person nominated by the Purchaser, free access to its workshops or those of its subcontractors or to any other place where tasks related to the Order are carried out, in order to enable the status of the Order and its progress to be observed.
6.2. If the Supplier’s personnel have to work on the Purchaser’s site, or one of the Purchaser’s customers’ sites for the purpose of carrying out the Order, those personnel shall remain the full responsibility of the Supplier at all times.
ARTICLE 7 –
PACKAGING – TRANSPORT 7.1. The Supplier will be responsible for packing the Supplies and ensuring that the Supplies are adequately secured and protected at its cost and risk.
7.2. The Supplier shall draw up an inventory for each shipment. The inventory shall include all the details required to identify the packages (order references, type and quantity of Supplies, name of the carrier, packing references) as set out in the Order.
7.3. Should there be any loss or damage to the Supplier during their storage, transport, delivery or prior to their acceptance, the Supplier undertakes to procure and supply at his cost and risk identical replacements of any damaged or missing items within the initial time scales provided for in the Delivery schedule. The Purchaser may, at its option, without limitation of any rights and remedies which it may have at law by reason of such failure, (a) cancel the Order without notice nor allowance (b) reject the Supplies (c) retain the payment in totality or partially.
ARTICLE 8 –
PRICES Prices indicated on the Order are all-inclusive, fixed and non-revisable, after deduction of discounts, and inclusive of (without limitation): taxes and duties, storage, packaging, insurance, customs duty and transport paid to the delivery address. The currency of amounts appearing on the Order is also the currency of payment. Prices are not subject to any form of revision, as a function of any variation in exchange rates or otherwise.
ARTICLE 9 –
INVOICING 9.1. The Supplier shall draw up invoices in three copies, which are to be addressed to the Purchaser at the address given on the Order.
9.2. Invoices shall be accompanied by the document justifying the fact generating the payment and must contain: 1) The full reference, order number and date of order, and the reference project number. 2) A complete description of the Supplies, and the number and date of the packing list; 3) the price of the Supplies, exclusive of tax, the amount of VAT, taxes, insurance and customs duty, the price inclusive of tax and any discounts applicable; 4) The date on which payment is to be made in application of Article 10 below; and, more generally, all information to be included on the invoice in order to comply with applicable law.
9.3. The Purchaser reserves the right to refuse any invoice that is incorrect (either in substance and/or in form).
ARTICLE 10 –
PAYMENT 10.1. Unless the Order provides otherwise and provided that the conditions of the Order were duly executed, invoices are to be paid by the Purchaser within 90 days after receipt of the invoice submitted in accordance with the provisions of Article 9.
10.2. The Purchaser shall have the right to set off against any invoice any sums which the Supplier owes to the Purchaser under the Order or otherwise. 10.3. The payment by the Purchaser of the contractual price for the delivered Supplies shall not constitute an acceptance thereof and does not release the Supplier of its responsibilities and obligations.
ARTICLE 11 –
WARRANTY 11.1. The Supplier warrants to the Purchaser that the Supplies (i) are strictly in conformity with the provisions of the Order, the specifications, plans and documents which are referred therein; (ii) are in accordance with best industry practice and applicable standards and in strict compliance of any applicable laws (including any export regulations); (iii) are free from all defects of design, matter, manufacture, construction or installation; and (iv) are new, and in conformity with the use for which the Purchaser intends them.
11.2. The Warranty shall be of at least two years duration, running from the date that the Supplies were put in service (Article 13) in accordance with the terms of the Order.
11.3. The Supplier agrees to promptly replace any defective parts of the Supplies at its expense. Any part replaced under the terms of the Warranty or any other legal warranty shall be subject to the same terms of warranty as provided in this Article 11. The return of the defective parts will be at the charge of the Supplier. The Supplier undertakes to supply spare parts and any other parts liable to be required throughout the service life of the Supplies. Failure to promptly remedy any defects following the Purchaser’s notice to do so shall entitle the Purchaser to arrange for all necessary work to be carried out at the Supplier’s cost.
11.4. The Warranty shall be extended by any period during which the Supplies are out of service, starting on the date on which the Purchaser requests that the Supplier take steps to remedy the defect and ending on the date on which the Supplies in question are put back into service. If a key or main part of an element of the Supplies needs to be repaired or replaced during the Warranty period, the Warranty will be renewed for the whole of that element of the Supplies.
LIABILITY AND INSURANCE 12.1. The Supplier shall be liable to the Purchaser and any third parties, and shall indemnify the Purchaser against any losses, damages, costs and expenses of any nature, (whether direct, indirect, consequential, tangible, intangible, physical, or economic and whether suffered by the Purchaser, the Supplier or any third party), which result from the Supplier’s breach of its obligations under the Order or from its negligence or default. The Supplier shall be liable for the consequences of its breaches that are attributable to it or to the Supplier’s employees, officers, directors, managers, agents, subcontractors, suppliers and/or service providers.
12.2. The Supplier shall maintain insurance coverage of the types and in the amounts required by applicable law and good industry practice, including but not limited to employer’s liability or workmen’s compensation insurance as applicable, public/product liability insurance and personal injury/property damage insurance. The Supplier shall, within seven (7) days after receiving a written request from the Purchaser, (i) name and maintain the Purchaser as an additional insured under all such policies and (ii) provide to the Purchaser certificates of insurance confirming its addition to the policies, the insurers, policy numbers, types and levels of coverage.
ARTICLE 13 –
COMMISSIONING Should the Order stipulate that the Supplier (or a third party under the Supplier’s supervision) perform any assembly and/or commissioning of the Supplies the parties agree that such assembly shall include all steps required to put the Supplies into good working order in accordance with the terms of the Order and the requirements of the Purchaser and all steps, tests of performance required by the Purchaser or the end user for the Supplies to be put into full commercial service.
CONFIDENTIALITY 14.1. Any plans, documents, know how or information of any nature transmitted to the Supplier by the Purchaser, during negotiation and performance of the Order (together “Information”) is confidential, shall remain the Purchaser’s property and must be returned to the Purchaser when the Order is terminated for any reason. The Supplier shall not use the Information for any purpose other than executing the Order, unless the Supplier has received prior written permission from the Purchaser. The Supplier shall treat such Information as being strictly confidential and may not, either before, during or after completing the Order, divulge or communicate such Information to any third party or use the Information directly or indirectly, partially or completely.
14.2. Except if the Purchaser agrees expressly in writing all information and know-how relating to the Supplies that the Supplier provides to the Purchaser in connection with the Order, shall not be deemed to be confidential.
INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
15.1. Any models, plans, tooling, or other elements covered by the intellectual and/or industrial property, given by the Purchaser to the Supplier for the purpose of executing the Order will remain the Purchaser’s exclusive property and must be returned to the Purchaser when the Order is delivered or if the Order is terminated for any reason.
15.2. Reproduction of these elements or the manufacture of identical equipment for the Supplier or for a third party is strictly forbidden unless the Purchaser has given its express written permission.
15.3. The Supplier irrevocably assigns to the Purchaser all right, title and interest worldwide in any know-how, trade secrets, ideas, technical information, drawings, designs, trademarks, formulae, processes, apparatus, equipment, manufacturing techniques, software programs, software tools, code (in source or object form), software source documents, documentation manuals or other copyrightable or patentable works that is solely or jointly conceived, made, reduced to practice or learned by the Supplier in the course of any work performed for or on behalf of the Purchaser.
15.4. The Supplier warrants that the Supplies do not constitute an infringement of any third party rights and that it has all licenses, authorizations and permissions necessary to provide the Supplies in accordance with the Order and that the Purchaser’s and the Purchaser’s customers’ use of the Supplies in any form does not infringe the intellectual property rights of any third party. The Supplier defends, holds harmless and indemnifies the Purchaser in full against any claims, losses, damages costs, complaints, or other expenses made by third parties in connection with the provision of the Supplies to the Purchaser and the Purchaser’s or the Purchaser’s customers’ use of the Supplies.
CANCELLATION 16.1. If the Supplier breaches any obligation under the Order or the Supplier ceases to be able to pay its debts, files for insolvency or suffers any other event of insolvency or bankruptcy in any jurisdiction, the Purchaser may by rights and of its own accord terminate the Order immediately by giving formal written notice. Such a termination shall be without prejudice to the Purchaser’s accrued rights and remedies.
16.2. During the execution of the Order, the Purchaser has the right to cancel it whole or part of the Order without justifying his reasons. Following such termination, the Parties shall negotiate, the compensation allocated for the Supplier on the basis for the reasonable direct costs which are the direct consequence of cancellation and which will be identified by the Supplier within 30 days following the notification of cancellation. The Purchaser shall not be liable to the Supplier for any loss of profit, loss of contracts or other losses and/or expenses howsoever arising out of or in connection with termination of the Order or otherwise.
ARTICLE 17- SUSPENSION
The Purchaser reserves the right to suspend execution of the Order at any time. Any such suspension will come into effect when notified in writing to the Supplier by the Purchaser. During the period of suspension, any obligations relating to the Order will be suspended, except for those concerning confidentiality and intellectual property rights. The Supplier shall safeguard the Supplies during the period of the suspension at its risk. If the Suspension lasts for more than 3 months, for a reason other than a case of force majeure or a default by the Supplier, the Supplier shall be entitled to its reasonable proven extra costs (evidenced in writing) that the Supplier incurs directly as a result of the suspension.
ARTICLE 18 – INSPECTION
The Purchaser reserves the right, alone or with the end user (or their representatives), to inspect at its expense the Supplies before shipment and during process of manufacture and observe the process of manufacture at all times. If the results of such inspection or testing give reasonable cause for the Purchaser to be of the opinion that the Goods do not confirm or are unlikely to confirm with any of the warranties given by the Supplier to the Purchaser under Article 11, the Purchaser shall inform the Supplier within seven (7) days of the inspection and/or testing, and the Supplier shall immediately take such action as is necessary (at no cost or expense to the Purchaser) to ensure conformity and in addition the Purchaser shall have the right to require and witness further testing and inspection.
ARTICLE 19 –
SAFETY, HEALTH AND ENVIRONMENT 19.1. The Supplier agrees to deliver the Supplies in compliance with applicable law, regulations and standards concerning health, safety and environment in force at the time of delivery. The Supplier shall observe and comply with all provisions and requirements of EU and any other applicable laws and regulations such as in relation to packing, labelling, carriage or disposal of hazardous goods as well electronic equipment. Hazardous goods must be marked by the Supplier with International Danger Symbol(s) and display the name of the material in English and local language if required. Transport and other documents must include declaration of the hazard and name of the material in English and local language if required. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings. Supplier shall obtain and apply CE mark for all goods as required by any law or regulations and provide with Declaration of Conformity as requested. All information held by or reasonably available to the Supplier in connection with any potential hazards known or that could exist in the transport, handling or use of the goods to be supplied by Supplier or in connection with the provisions of the Services by the Supplier shall promptly be communicated to Purchaser.
19.2. The Supplier is responsible for any damage to the environment or health and safety that are caused by the Supplies whether or not they comply with applicable law, regulations and standards. The Supplier indemnifies the Purchaser against any losses, damages, costs or expenses arising in relation to such damages to the environment or health and safety. The Supplier will bear all tangible, intangible and financial consequences arising from any such damage, in particular but not limited to the cost of replacing the Supplies.
ARTICLE 20 –
JURISDICTION – GOVERNING LAW Any dispute arising out of or in connection with the Order, including any question regarding its existence, validity or termination, shall be referred to the exclusive jurisdiction of the English Courts. The Order shall be governed by English law, excluding, the provisions of the Vienna Convention on the International Sale of Goods.
ARTICLE 21 –
GENERAL 21.1. If any provision of the Order is held to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Order had been executed with the invalid, illegal or unenforceable provision eliminated.
21.2. No waiver by either party of any breach of the Order shall be considered to be a waiver of any subsequent breach of the same or any other provision.
21.3. Any notice required to be given by either party to the other under the Order shall be in writing addressed to the other party at its registered office, principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
21.4. The Order and its attachments constitute the entire understanding of the parties and supersede all previous agreements, statements and understandings from or between the parties regarding the subject matter of the Order. The Order also supersedes any conflicting language contained in any applicable past or future purchase order regarding the subject matter of the Order.
21.5. The parties do not intend that any term of the Order should be enforceable by any person who is not a party to the Order.
21.6. In the Order, the following words and expression shall have the meanings stated: “Order” means the order to which these General Conditions of Purchase are attached to;
“Purchaser” means the party identified as Purchaser in the Order;
“Supplier” means the party identified as Supplier in the Order;
“Supplies” means the goods and or services to be provided under the Order as more particularly described in the Order; and
“Warranty” means the warranty given by the Supplier under Article 11.
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EUROTHERM LIMITED GENERAL TERMS & CONDITIONS OF SALE OF GOODS AND SERVICES AND LICENSE OF SOFTWARE
Clause 1: Definitions
1.1 “Company” shall mean the company which has executed a Purchase Order
1.2 “Goods” shall mean all products, equipment, materials, spare parts, hardware, supplies, and accessories to be supplied as set out in a Purchase Order.
1.3 “Party” shall mean Seller or Company, as the context requires and “Parties” shall be construed accordingly.
1.4 “Purchase Order” shall mean any purchase order, issued subject to these terms and conditions and with related attachments including without limitation, any software licenses, pricing schedules, and delivery schedules, which shall describe the Goods, Software or Services to be supplied by Seller to the Company and the Specifications. Purchase Orders agreed upon from time to time between Seller and Company shall constitute separate contracts that incorporate these terms and conditions by reference and shall be governed by these terms and conditions.
1.5 “Seller” shall mean Eurotherm Limited
1.6 “Services” shall mean the provision of testing, assessment, per-diem or specific time-limited engineering services, installation, start-up, configuration and any development of application programs, customization, implementation, training and any other services set out in the Purchase Orders, excluding maintenance and support services which shall be rendered under a separate agreement.
1.7 “Software” shall mean computer software programs in object code, instructions manuals, specifications and related documentation in written or electronic form, for which Seller grants Company a license under a Purchase Order but excluding third party software, its related instructions manuals and documentation.
1.8 “Specifications” shall mean the Seller standard specifications applicable to the Goods and/or Software at the time of issue of a Purchase Order or the requirements set out in a Purchase Order and with respect to Services, the agreed statement(s) of work containing a description of the Services to be rendered.
1.9 “Third Party Products” shall mean products and or software of a third party vendor.
1.10 “Warranty Period” shall mean the period which Goods, Software and Services are respectively guaranteed by Seller. Products are guaranteed for the period of 2 years from date of shipment by Seller, except mechanical paper recorders, where the period shall be one year from date of shipment.
Clause 2: Sole Agreement
Any Purchase Order shall constitute the entire understanding of the parties and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of the Purchase Order.
Clause 3: Price and Payment Terms
3.1 Company is responsible for any applicable taxes, including sales, use, GST, VAT, customs, or excise tax, excluding only those taxes based upon the net income of Seller.
3.2 Seller shall submit invoices to Company upon achievement of the payment milestones set out in the Purchase Order.
3.3 Company shall pay any invoices in the invoice currency (ies) within thirty (30) calendar days from the date of invoice.
3.4 If Company fails pay any invoice in accordance with this Clause 3, then Seller shall be entitled to suspend performance or reduce its rate of performance under any Purchase Order until such payment is made and Company shall be liable for any costs of such suspension or reduction in rate of performance and Seller shall be entitled to an extension of time.
3.5 Without prejudice to any other rights of Seller, if Company fails to make payment in accordance with any Purchase Order, Company shall be liable to pay interest to Seller on the amounts unpaid until such payment is made. The rate of interest shall be 2% above the then base lending rate of the Bank of England.
Clause 4: Delivery, Title and Risk of Loss
4.1 Title to all Goods, except for Software whose title remains at all times with Seller, shall pass to Company upon full payment of the Purchase Order.
4.2 Delivery shall be Ex-works (Incoterms 2000), Seller’s facility.
Clause 5: Receiving, Inspection and Acceptance
5.1 Company shall be responsible for receiving, installing, starting up and maintaining all Goods.
5.2 If Company fails to notify Seller of any material non-conformities with the Specifications within a reasonable period following delivery, not to exceed thirty (30) calendar days, or is using those Goods, Software or Services in a production environment or for the regular conduct of its business, the Goods, Software or Services shall be deemed accepted, without prejudice to the warranty provisions hereunder.
Clause 6: Force Majeure
Except for Company’s payment obligations, neither Party shall be liable for delays caused by conditions beyond their reasonable control, provided notice thereof is given to the other Party as soon as practicable
Clause 7: Warranties for Goods, Software and Services
7.1 Seller warrants to Company that the Goods, Software and Services shall, at time of delivery, materially conform to the Specifications. If the Services are of an advisory nature, including any services performed on a time and materials basis, the Company shall remain the design authority and no specific result is guaranteed or assured.
7.2 Non-conforming Goods subject to a warranty claim shall be returned to the nearest Seller’s repair facility, transportation charges prepaid for the account of the Company. Seller’s obligation and Company’s sole remedy under this Clause is, at Seller’s option the repair or replacement, correction, of any non-conforming Goods, Software or part thereof. The repaired or replaced Goods shall be warranted by Seller for the remainder of the original Warranty Period or for three months, whichever is longer, free of charge and return-shipped to Company with transportation prepaid by Company. Seller shall not be responsible for any offshore transport costs.
7.3 The foregoing warranties do not apply to non-conformities caused by (i) Company’s design or installation of the Goods and/or Software, (ii) modification or repair to the Goods and/or Software otherwise than as authorized in writing by Seller; (iii) handling, storage, use or maintenance of the Goods and/or Software in a manner or an environment inconsistent with the Specifications and/or instructions or recommendations of Seller; (iv) defect in Company’s own products or software or use of the Goods and/or Software in combination with any Third Party Product not procured by Seller; (v) Company’s failure to observe the payment terms under any Purchase Order or any other of its obligations under any Purchase Order; (vi) normal wear and tear; (vii) installation or wiring of the Goods and/or Software other than in accordance with Seller’s instructions; (vii) transfer of the Software from the device on which it was originally installed; and/or (viii) any fault of the Company or its agents.
7.4 Except as expressly set out in this Clause 7, all warranties whether express or implied (including without limitation any implied warranty as to merchantability, operability or fitness for purpose) are excluded.
Clause 8: Third Party Products
8.1 The warranties set out in Clause 7 do not apply to Third Party Products. Seller shall bear no responsibility for the performance, repair or warranty of any of Company’s software or hardware product or any Third Party Products and Company shall look solely to third party vendor for all remedies and support with regard to such Third Party Products. If such Third Party Product is expressly procured by Seller to Company under a Purchase Order, that Third Party Product shall be warranted only in accordance with the warranties given to Seller in respect thereof by the relevant third party vendor and to the extent that Seller has the right to assign or transfer such warranties.
8.2 If Third Party Products are supplied by the Seller under any Purchase Order, such supply is made on a “pass-through” basis only and is subject to the terms and conditions of the third party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto. Third Party Products are quoted subject to price changes imposed by third party vendors between the date of Purchase Order encompassing such Third Party Products and the date of Seller’s invoice related to that Third Party Product
Clause 9: Laws and Dispute Resolution
9.1 The Purchase Order shall be governed by and construed in accordance with the laws of England, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Purchase Order. 9.2 Any dispute arising out of or in connection with any Purchase Order, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the ICC, which Rules shall be deemed to be incorporated by reference into this
Clause 9.2. The number of arbitrators shall be one. The seat of arbitration shall be London, UK. The language to be used in arbitral proceedings shall be English
Clause 10: Intellectual Property and Software License
10.1 All rights, title or interest in any patent, trademark, service marks, copyrights, trade secrets, ideas, concepts, know-how, techniques or other proprietary right forming part of the Goods, Software or, Services shall remain vested in Seller (or third party owner) and shall not be transferred to Company.
10.2 Company shall be granted a non-exclusive, non-transferable, limited license for the use of the Goods, Software and Services for the purposes provided.
10.3 Seller’s Software licensed to Company may contain components that are owned by third parties. The third party owner shall retain exclusive right to its firmware and software. Use of such third party components may be subject to restrictions contained in the third party’s end-user license agreement in addition to the conditions set forth herein.
10.4 Company may not without Seller’s prior written express consent (i) copy, modify, sublicense, loan or transfer in any manner the Software licensed herein; (ii) create derivative works based on the Software licensed herein; (iii) subject the Software licensed herein to translating, decompiling, disassembling, reverse assembling, reverse engineering, emulating or performing any other operation on the Software, unless the operation is specifically authorized by law. Company agrees to defend, indemnify and hold harmless Seller from all damages and third party claims arising from unauthorized used or transfer of the Software.
10.5 Seller shall defend, indemnify and save harmless Company from and against any third party claims, suits, judgments, court costs, reasonable attorney’s fees and other liabilities, demands or losses (altogether “Liabilities”) to the extent such Liabilities result from an infringement due to the Services and/or the Goods, Software’s design or construction, of a patent or copyright owned by a third party in the country of manufacture of such Goods and/or Software or in the country of performance of the Services at the time of execution of the relevant Purchase Order under which the alleged infringement has occurred, provided that (i) Seller shall be promptly notified of the bringing of said suits; (ii) Seller shall be given the sole control of the defense and all related settlement negotiations; (iii) Company agrees to fully assist Seller in the defense of the claim and (iv) Company complies with Seller’s direction to cease any use of the Goods or Software which in Seller’s reasonable opinion, is likely to constitute an infringement. Seller shall not be responsible for any settlement made without its consent. 10.6 The foregoing obligations do not apply when the claim of infringement results from or is related to: (i) Goods and/or Software provided pursuant to Company’s designs, drawings or specifications; (ii) Goods and/or Software stored, used or maintained otherwise than in accordance with Seller’s instructions or recommendations or other than for the Seller’s internal business purpose; (iii) claims of infringements resulting from combining Goods or Software provided hereunder with any other item not furnished by Seller; (iv) modifications to the Goods or Software without prior written consent of Seller; (iv) parts supplied or designed by Company or third parties; or (v) Company’s failure to use corrections or enhancements made available by Seller.
10.7 In case said results of Services, Software or Goods, or any part thereof, is in such suit held to constitute infringement and/or its use is enjoined, the Seller shall, at its own expense and option either: (i) procure for the Company a royalty-free license to continue using such Software, results of Services or Goods, or (ii), replace same with substantially equal but non-infringing equipment or modify it so it becomes non-infringing, provided that no such replacement or modification shall in any way amend or relieve Seller of its warranties and guarantees set forth in these terms and conditions. In the event Seller is unable to do either of the foregoing, the allegedly infringing item shall be returned to Seller and Seller’s maximum liability shall be to refund to Company the amount paid for such item, less a reasonable depreciation for use and damage.
10.8 This Clause 10 states the Parties’ entire liability and sole remedy with respect to infringement or claims thereof.
Clause 11: Confidentiality
11.1 “Confidential Information” shall mean the Software and any and all information in any form that each Party provides to each other in the course of any Purchase Order and that either (i) has been marked as confidential; or (ii) is of such nature that a reasonable person would treat as confidential under like circumstances. Confidential Information does not include work products resulting from the Services performed hereunder and information which (i) is already known to the other Party at the time of disclosure; (ii) is independently developed without the benefit of the other’s Confidential Information; (iii) is received from a third party that is not under any confidentiality obligation towards the owner of the information; or (iv) has entered the public domain through no fault of the recipient.
11.2 Neither Party shall, except with respect to their employees, contractors or agents with a need to know for purposes of any Purchase Order, disclose to any person any Confidential Information of the other Party without the other Party’s prior written consent, except where Confidential Information may be disclosed by law.
Clause 12: Indemnification and Limitation of Liability
12.1 Seller shall indemnify, defend and hold Company harmless against third party claims (including without limitation, the Parties’ employees) for personal injury, death or loss or damage to property caused by Seller’s negligence in the performance of its obligations hereunder, provided (i) Seller is entitled to exclusively control the defense against the claim; (ii) Seller is immediately notified of such claim and (iii) Company provides reasonable assistance in the defense of the claim and does not enter into any settlement or make any concession without the Seller’s prior written approval.
12.2 In no event shall Seller have any liability under any Purchase Order for any special, incidental, punitive, exemplary, indirect or consequential damages, including but not limited to lost profits, loss of production, loss of revenues, interest, capital, financing, good will, use, business reputation, opportunity or productivity, howsoever arising, even if Seller has been advised of the possibility of such damages.
12.3 Seller’s liability under any Purchase Order for any direct damages arising out of or in any way related to the Purchase Order (whether arising under tort, negligence, contract, warranty, strict liability or any other cause or combination of causes) shall in no event exceed the specific price of the goods, software and/or services provided under the Purchase Order. With respect to site based services, the maximum aggregate liability of Seller for direct damages under the Purchase Order giving rise to liability shall not exceed the amount equivalent to one engineer’s work day. Nothing in any Purchase Order shall exclude or limit the liability of either Party for death or personal injury caused by negligence.
Clause 13: Termination for Default
13.1 Either Party may terminate any outstanding Purchase Order for default if the other has materially breached any of its obligations under the Purchase Order and has not cured the breach within thirty (30) days of receipt of a notice from the other Party.
13.2 Termination of a Purchase Order by either Party shall not affect continuing performance by the Parties of their respective obligations under a different Purchase Order, unless otherwise agreed upon by the Parties.
Clause 14: Assignment
Neither Party shall assign or transfer any Purchase Order without the other Party’s express prior written consent, which shall not be unreasonably withheld.
Clause 15: Non-Waiver
Failure by either Party to insist upon strict performance of any of the terms and conditions hereof or failure or delay to exercise any rights or remedies provided herein or by law or to properly notify the other in the event of breach shall not be construed as a waiver of any provision of any Purchase Order. No waiver by a Party of a right or default under any Purchase Order shall be effective unless in writing.
Clause 16: Severability and Survivorship
16.1 If any provision or portion of a Purchase Order shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, that provision or portion of the Purchase Order shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect.
16.2 Clauses 1, 3, 9, 10, 11, 12 and 17 of these terms and conditions shall remain in full force and effect after completion of a Purchase Order, expiration, cancellation or termination of any Purchase Order for the period specified herein, or if not specified then for the maximum time allowed by law.
Clause 17: Third Party Rights
The Parties do not intend that any term of a Purchase Order should be enforceable, by virtue of the Contracts (Rights of Third Parties) the Purchase Order.
Clause 18: Independent Contractor
Nothing in a Purchase Order shall be deemed to constitute a partnership, joint venture, or fiduciary relationship between Company and Seller, nor shall anything in a Purchase Order be deemed to create an agency relationship between Company and Seller. Neither Company nor Seller shall be or become liable or bound by any representation, act or omission whatsoever of the other.
Clause 19: Global Export Control
The deliverables provided by Seller under this Agreement contain or may contain components and/or technologies from the United States of America (“US”), the European Union (“EU”) and/or other nations. Buyer acknowledges and agrees that the supply, assignment and/or usage of the products, software, services, information, other deliverables and/or the embedded technologies (hereinafter referred to as “Deliverables”) under this Agreement shall fully comply with related applicable US, EU and other national and international export control laws and/or regulations. Unless applicable export license/s has been obtained from the relevant authority and the Seller has approved, the Deliverables shall not (i) be exported and/or re-exported to any destination and party (may include but not limited to an individual, group and/or legal entity) restricted by the applicable export control laws and/or regulations; or (ii) be used for those purposes and fields restricted by the applicable export control laws and/or regulations. Buyer also agrees that the Deliverables will not be used either directly or indirectly in any rocket systems or unmanned air vehicles; nor be used in any nuclear weapons delivery systems; and will not be used in any design, development, production or use for any weapons which may include but not limited to chemical, biological or nuclear weapons. If any necessary or advisable licenses, authorizations or approvals are not obtained, whether arising from inaction by any relevant government authority or otherwise, or if any such licenses, authorizations or approvals are denied or revoked, or if the applicable export control laws and/or regulations would prohibit Seller from fulfilling any order, or would in Seller’s judgment otherwise expose Seller to a risk of liability under the applicable export control laws and/or regulations if it fulfilled the order, Seller shall be excused from all obligations under such order and/or this Agreement.