1.0 General terms
1.1 Term. The term of this Contract (the “Initial Term”) commences on the “start date” and continues until the “expiration” as stated in the Contract Details.
1.2 Renewal. Upon expiration of the Initial Term, this Contract (including the Econord Life Cycle Support if applicable) shall automatically renew for additional successive one year terms unless either Party provides written notice of nonrenewal at least 60 calendar days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). If either Party provides timely notice of its intent not to renew this Contract, then this Contract shall terminate on the expiration of the then-current Term in accordance with Section 7 (Termination) below in this term sheet.
1.3 Renewal Pricing. During each Renewal Term, Seller may increase its charges for the Products or other services by the amount which Seller increased the comparable fees or charges for its other comparable commercial customers by taking into account changes in its costs and/or local market influences such as inflation and/or currency rate fluctuation for each twelve (12) month period. In addition, the charges may increase by the amount by which the Seller requests additional services and parts in the Service Summary of this Agreement. The renewal fee of Econord Life Cycle Support Agreement will increase by 2% during each Renewal Term.
1.4 Payment. If the Customer fails to pay in due time, Seller is entitled to collect an overdue interest of 2% per month, from the due date until full payment is received.
1.5 For services and parts that are additional to the items listed in the Service Summary of this Contract the Customer will be charged separately in accordance with the current list price of Seller.
1.6 Unless otherwise expressly provided differently, the payment shall be due 10 days from receipt of invoice.
2. Services excluded
2.1 The identification and redressing of problems due to changes in installation conditions (including but not limited to changed cabling, removal or replacement of system units) or operating conditions;
2.2 Problems caused by misuse, operator mistakes, poor maintenance, failure to follow Seller’s user manual instructions and advices, and accidental damage or defects caused by Customer’s modification to software or hardware in associated system units;
2.3 Problems caused by external reasons such as fire, excessive changes in mains power supply or noise, RF electromagnetic interference, damage by water, lightning or similar, or any form of damage not reasonably attributable to fair wear and tear;
2.4 Training and instruction of staff or restoration of files, discs, lost data or programming modifications other than for the purpose of redressing possible defects.
3. Customer Obligations
3.1 The Customer shall provide the necessary labor and mechanical assistance for the moving of heavy machinery when required together with test weights including the carriage and hire of same when necessary. Furthermore, the Customer shall provide the necessary labor, tools (other than a few handheld tools that Seller’s employees can easily bring with them in an airplane) and sufficient products for testing purposes.
3.2 The Customer shall ensure that Seller and its authorized representatives have full and free access to the premises of the Customer and to the equipment and related software, including any records of its use to enable Seller to perform its duties. Furthermore, the Customer shall provide adequate free working space and such other facilities at said premises as may be reasonably requested by Seller where these are required to provide the service on the equipment and/or software.
3.3 The Customer shall provide Seller with such information concerning the equipment and related software, its application, use, location and environment as Seller may reasonably request to enable it to carry out its duties. If requested Seller can speak with operators and the technical department of Customer.
3.4 The Customer is obliged to obtain necessary upgrades of relevant third party system software and hardware. In the event that such upgrades are not obtained by the Customer, the obligations of Seller to perform the service for hardware and software and to provide problem resolution can be suspended until the Customer has obtained said upgrades.
3.5 The Customer shall make available to Seller free of charge all information facilities and services reasonably required by Seller to enable Seller to perform the service on the hardware and software including without limitation computer runs, memory dumps, printouts and data preparation.
3.6 The Customer is responsible for the training of its staff and that its staff has read and understood the manuals related to the equipment and acknowledges that he is fully aware that the failure to do so both during the initial installation of the equipment and related software and subsequently during its use, will jeopardize the efficient use and operation of the equipment and related software provided by Seller.
3.7 The Customer recognizes his responsibility to secure that a complete updated backup of all data at any time is available. Furthermore, the Customer acknowledges and agrees that he is solely responsible for the maintenance and the safety of his computer systems and the stored data herein and therefore shall maintain sufficient and regular back-up copies of its data and programs and thus shall implement disaster recovery plans that safeguard against the risk posed by any potential loss of data and programs. The Customer accepts that any data lost from the time of the last restorable backup and any failure of the supported software is his sole responsibility and that Seller therefore has no liability for any loss of data or programs or the effects thereof. Additional work required by Seller due to any such lack/loss of data or programs shall be at the cost of Customer and is expressly excluded from the service charge.
3.8 The Customer shall not request, permit or authorize anyone other than Seller to provide any services in respect to the equipment and related software during terms of this Contract.
3.9 The Customer shall cooperate fully with the Seller´ personnel in the diagnosis of any error or defect in the hardware or software.
4. Warranty and Limitation of Liability
4.1 For warranty on the parts delivered under this Contract, the warranty terms mentioned in Article 9 of the enclosed Econord general terms and conditions of sale apply. On wear and tear parts, there is no warranty.
4.2 Further Customer explicitly accepts the limitations of Seller’s liability as described in Article 10 of the enclosed Econord general terms and conditions of sale. There is stated amongst other things that in no event Seller, its suppliers, or its subcontractors shall be liable for any loss of profit, loss of revenue, loss of or damage to electronic data, claims of third parties of whatever nature, substitute equipment or supply sources, and any special, incidental, indirect, and/or consequential damages of any nature whatsoever, including, but not limited to, diminution in value of goods processed with the Equipment, costs of capital, cleaning costs, recall costs, extra labor, overhead, transportation, lay time of a vessel, etc. Further it is stated that in cases in which Seller, its suppliers or its sub-contractors can be held liable, the aggregate liability shall be limited to an amount not exceeding 50% (fifty percent) of the price of the particular component or item of Product or Third Party Software that caused the damage.
5.1 At the termination date the Customer shall pay all arrears of charges here under accrued at the date of termination.
5.2 In the event of termination of this Contract by Seller (excluding termination for Customer’s breach) the Customer is entitled to repayment of the service charge on a pro rata basis for the un-expired portion of the duration period in respect of which such charges have been paid by the Customer.
5.3 In the event of termination of this Contract by the Customer, Seller is entitled to retain all payments for the software maintenance and services whether or not such payments as at the effective date of termination relate to an un-expired duration period.
6. Jurisdiction and Governing Law
6.1 The governing law and jurisdiction is outlined in Article 21 of the enclosed Econord general terms and conditions of sale. Any dispute, controversy or claim arising out of or in connection with the GTC, the Contract, and/or any legal relationship arising from it, including any disputes regarding the existence, validity, or termination, shall be finally settled under the then in force Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules. The seat of arbitration and place of the hearings shall be the place where Seller has its registered office. The language of arbitration shall be English.
7. General Terms and Conditions of Sale
Article 1. Acceptance of GTC, Contract documents
1.1 These GTC apply to all legal relationships between Seller and Customer for the sale of Products by Seller to Customer. By entering into such a legal relationship with Seller, Customer expressly acknowledges and accepts the applicability of the GTC.
1.2 The proposal prepared by Seller and signed by Customer without reservations or changes, the final written order confirmation prepared by Seller, respectively a separate written contract signed by Customer and Seller, is the final expression of the agreement between Seller and Customer. Unless attached as an annex to the Contract, all drawings, specifications, samples and models shown shall not be a part of the Contract. In case of any discrepancies between the text of the Contract and the GTC then the text of the Contract shall prevail.
1.3 Customer acknowledges that any purchase order issued by Customer in accordance with the Contract is intended only to establish authority for Customer’s internal accounting purposes. No purchase order shall be considered to be a counteroffer, amendment, modification, or other revision to the terms of the Contract. No term or condition included in Customer’s purchase order will have any force or effect.
Article 2. Definitions
2.1 The following words, when starting with a capital, shall have the following meanings:
2.2 “Anti-Corruption Laws”: Any applicable foreign or domestic anti-bribery and anti-corruption laws and regulations, as amended from time to time, including without limitation the UK Bribery Act, the US Foreign Corrupt Practices Act and any laws intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
2.3 “Contract”: The proposal prepared by Seller and signed by Customer without reservations or changes, the final written order confirmation prepared by Seller, respectively a separate written contract signed by Customer and Seller.
2.4 “Commissioning Activities”: All work performed by Seller at Customer’s facilities and related remote log in activities from the start of running in and the tests of the Equipment until the moment of acceptance by Customer as defined in Article 5.
2.5 “Customer”: The customer to whom Products are sold or offered for sale.
2.6 “Customer Personnel”: Customer officers, directors, employees, direct or indirect beneficial owners or shareholders, or any other party engaged by Customer to act on its behalf in performance of the Contract and/or the business resulting therefrom.
2.7 “Delivery”: Delivery as meant in the applicable Incoterm. If no Incoterm has been agreed upon Delivery means i) if Seller is responsible for the transport at the moment when the Equipment is delivered at Customer’s premises or ii) if Customer is responsible for transport at the moment when the Equipment is delivered to the first transport carrier.
2.8 “Equipment”: Machines, installations, all components and parts thereof, spare parts, and other movable property to be supplied by Seller under the Contract.
2.9 “Gross Negligence”: An act or omission implying either failure to pay due regard to serious consequences, which a conscientious contracting party would normally foresee as likely to ensue, or a deliberate disregard of the serious consequences of such act or omission.
2.10 “GTC”: These general terms and conditions of sale applied by Seller.
2.11 “Installation Activities”: All activities by Seller outside Seller’s facilities (including all preparations and inspections at the place of installation) concerning the erection of Equipment at the agreed location and related remote log in activities, up to the Commissioning Activities.
2.12 “Econord Software”: Software, e.g., Econord, and associated documentation that is developed by Seller or Seller’s Affiliated Companies.
2.13 “Products”: Equipment, Services, and/or Econord Software.
2.14 “Revision”: Repair and/or improvement of Equipment by Seller at the request of Customer, outside of the scope of any warranty.
2.15 “Sanctions Rules”: Any applicable trade or economic sanctions, export control, embargo or similar laws, regulations, rules, measures, restrictions, restricted or designated party lists, licenses, orders, or requirements, in force from time to time, including without limitation those of the EU, the UK, the US, and the UN.
2.16 “Seller”: The Econord company selling the Products.
2.17 “Seller’s Affiliated Companies”: All companies directly or indirectly controlled by Econord hf.
2.18 “Service(s)”: Installation Activities, Commissioning Activities, Supervision, Revision, and/or other services rendered by Seller.
2.19 “Software”: Econord Software and Third Party Software.
2.20 “Supervision”: The giving of instructions and advice by Seller’s supervisor concerning the work performed by Customer and any third parties.
2.21 “Test Run”: Test to determine whether the Equipment and/or Econord Software is functioning in accordance with the specifications listed on the Contract,
2.22 “Third Party Software”: Software and associated documentation that is not developed by Seller or Seller’s Affiliated Companies and is licensed to Customer by a third party.
Article 3. Price, Payment, Additional work, and Retention of title/security interest and related issues
3.1 All prices quoted by Seller are, unless agreed otherwise in writing, valid for 60 days, notwithstanding the power of Seller to withdraw the proposal prior to acceptance by Customer. All prices are exclusive of any applicable (withholding) taxes, local or state sales taxes, VAT and/or any applicable local duties or levies, like but not limited to costs that are issued by handling agents, harbor authorities and the like. If these are due, the price shall be grossed up accordingly. The prices specified in the Contract are based upon the Delivery and payment terms specified in the Contract and take into account agreed upon limitations of liability, limitations in warranties, and the like.
3.2 All payments must be made in full in the country of Seller in the agreed currency, without any kind of deduction, set-off, or deferment, to the account of Seller on the date as specified in the invoice. Payment is only deemed to be made if the due amount is received by the Seller. Set-off or deferment can only be declared with claims that are undisputed by Seller or are supported by an irrevocable judgment as meant in Article 21. Payments can only be made by third parties on behalf of Customer with Seller’s explicit written consent. Time for payment shall be of the essence of the Contract. Unless explicitly agreed otherwise, drafts and checks are not accepted as payment.
3.3 In case of late payment Customer is obliged to pay default interest to the Seller in the amount set forth in the applicable national law and calculated from the date that the payment was due. In addition Seller may claim compensation for further damages caused by the late payment (including reasonbalereasonable attorney fees).
3.4 If additional work becomes necessary the Seller shall, if reasonably possible, inform the Customer in due course and set him a period of three working days for making a decision whether the Seller shall exercise the additional work. If the Customer agrees or does not react within the set period, Seller is entitled to exercise the additional work and to charge the additional work. Any additional work performed pursuant to the Contract shall be subject to these GTC.
3.5 Unless otherwise expressly provided in the Contract the price for Products shall be payable 10 days from receipt of invoice.
3.6 The title to and ownership of the Equipment shall remain the Seller’s until full payment is received by Seller.
If the applicable law system (as stated in Article 21 below) does not recognize the concept of retention of title then Customer hereby grants Seller a continuing security interest in and/or lien/pledge upon the Equipment for the purpose of securing all fees owing to Seller. Customer shall reimburse Seller for all costs incurred in the filing, perfection, and enforcement of such retention of title and/or security interest and/or lien/pledge. Upon delivery of written notice to Customer and a five-business day cure period, Seller may (a) restrict Customer’s physical access to the space and all the Equipment; (b) take possession of the Equipment and store it, at Customer’s expense, and dispose of it after a period of 30 days; (c) terminate the Contract; and/or (d) exercise all other remedies available under the Contract and the applicable law. Seller is hereby empowered to file the necessary documents for such retention of title and/or security interest and/or lien/pledge in the name of and on behalf of Customer. Furthermore, Customer shall upon request by Seller and to the extent required under applicable law, support Seller in registering Seller’s right to the Equipment in any public or private reservation of title register or register for security interest or similar measures Seller deems appropriate.
In abovementioned situations, Customer shall not be permitted to pledge or encumber the Equipment until payment in full of the amount due under the Contract has been received by Seller. Customer shall permit Seller to have free and complete access to the installation site for the purpose of enabling Seller to record and enforce its rights to the Equipment and Customer shall otherwise fully cooperate with Seller in enforcing Seller’s rights. In addition, until full payment has been received by Seller, Customer shall maintain sufficient insurance on the Equipment against theft, and any loss or damage during the period between Delivery and final payment.
If Customer violates any of its obligations described in this Article 3.6, it has to pay liquidated damages of Euro 1,000 (or the equivalent in local currency) for each day of the violation. To the extent allowed under the applicable law payment of these liquidated damages leaves all Seller’s other rights (including the right to claim full damages) in full force. Seller and Customer confirm that this sum represents a genuine pre-estimate of Seller’s loss.
If applicable, the exchange rate to be used will be the exchange rate used by the central bank in the Seller’s country of residence at the date of the violation.
3.7 In cases where Seller is providing Services for which no fixed price has been agreed, the price shall be determined by Seller using its standard rates applicable when the Services were rendered. Furthermore, Seller may charge all costs incurred including a reasonable surcharge. Seller shall document the surcharge if requested.
3.8 If the prices of one or more of the cost components included in the price of the Products offered to Customer increase after the date of providing a proposal—whether or not this takes place as a result of foreseeable circumstances or as a result of government regulations—Seller is entitled to increase the quoted price accordingly.
3.9 If security for the payment for Equipment has been provided by a bank or another third party and shipping of the Equipment cannot take place due to circumstances not attributable to Seller, Seller is entitled to claim any unpaid part of the sale price from the bank or other third party against submission of proof that the Equipment has been deposited at a warehouse. Such deposit takes place at the expense and the risk of Customer. The day on which the Equipment is deposited by Seller shall be regarded as the date of Delivery. Any shipping documents or other documents to be handed over by Seller to obtain payment from a bank or another third party shall immediately be given by the issuer of such document to Seller.
3.10 If Seller decides to involve Seller’s Affiliated Companies in the delivery of the Products then Seller is entitled to have part of the agreed upon price be invoiced by such Seller’s Affiliated Companies in the contract currency or in the local currency used in the country of Customer. In the latter situation the exchange rate to be used will be the exchange rate used by the central bank in Seller’s country of residence at the date of issuing the invoice.
Article 4. Delivery, Delay, Risk and Storage of Equipment
4.1 Unless otherwise agreed in the Contract all Equipment and Software is delivered Free Carrier at Seller’s premises or Seller’s storage facility according to the most recent version of the Incoterms (as issued by the International Chamber of Commerce in Paris) valid on the day of the Contract signing. Reasonable partial deliveries and transshipment are permitted.
4.2. The agreed Delivery period begins on the day that the Contract is concluded, the agreed deposits have been received by Seller and the agreed lay out signed by the Customer has been received by Seller. The agreed delivery period can only be met if all information necessary for the work has been received by Seller in time, if agreed payment securities have been provided in time and if Buyer met all its obligations in time. If this is not the case, Seller is entitled to extend the Delivery period.
4.3 The agreed Delivery period is, unless explicitly specified otherwise in writing, Aan estimation and not a deadline and time of Delivery is not of the essence.
4.4 In the event of a delay in Delivery due to force majeure, Seller may store the Equipment until Delivery can take place at the risk and for the account of Customer.
4.5 If a penalty or liquidated damages for late Delivery are agreed upon in the Contract the penalty or liquidated damages due shall—with the exception of late Delivery due to willful misconduct or Gross Negligence of Seller—be 0.5% (one-half percent) of the net price of the delayed Equipment per full week delay and the maximum of the total due penalties or liquidated damages shall never exceed 5% (five percent) of the net price of the delayed Equipment. An agreed contractual penalty or liquidated damages—if any—imposed in case of delay is, unless the applicable law prohibits this, considered to be the sole and complete settlement of the consequences of late delivery. Such a penalty or liquidated damages shall under no circumstances be incurred if the late Delivery in whole or partly is a result of force majeure, transport or custom delays, is caused by Customer, or is caused by other circumstances beyond Seller’s control.
4.6 The risk of the loss of or damage to Equipment passes to Customer in accordance with the applicable Incoterm. If no Incoterm has been agreed the risk of loss or damage passes i) if Seller is responsible for the transport at the moment when the Equipment is delivered at Customer’s premises or ii) if Customer is responsible for transport at the moment when the Equipment is delivered to the first transport carrier. If Seller carries out Services on existing equipment of Customer, said equipment remains at all times at the risk of Customer.
4.7 Customer is responsible for proper storage of the Equipment after Delivery. Outside storage is not acceptable. Storage in a dry, closed and guarded warehouse is strongly recommended. For storage of electrical and electronical parts and Equipment in which such parts are built in, special attention should be paid to the possible temperature fluctuations in the warehouse.
Article 5. Acceptance, Testing
5.1 Customer shall be considered to have accepted the Equipment and/or Software:
- a) if no Test Run is defined in the Contract after the expiration of three working days upon the date on which the Equipment and/or Software is delivered at the Customer’s premises, except in cases where the Customer has notified Seller about alleged defects within this period of time; or
- b) if a Test Run is defined in the Contract at completion of a successful Test Run. If the details of such test are not duly specified in the Contract, Seller shall execute its standard test. If the test, due to causes attributable to Customer, has not been performed within thirty (30) days after Seller has notified Customer of its readiness to perform the test, Customer shall be deemed to have accepted the Equipment and/or Software.
However, if Customer starts operating the Equipment and/or Software before the moments described under a) or b) above, then the moment that Customer starts operating the Equipment and/or Software is deemed to be the moment of acceptance.
5.2 In the event that a test reveals faults that do not substantially impair the performance of the Equipment and/or Software, the test shall nonetheless be considered successfully completed. Seller is obliged to remedy such faults within a reasonable time. Should the test not be successfully completed, Seller is entitled to remedy the observed faults and a new test shall be held within a reasonable term until the test is succesful.
Article 6. Items to be provided by Customer, Interfaces, Coordination
6.1 Customer shall make available in a timely manner and at no costs of Seller all the tools, qualified laborers who understand and speak English (or any other language agreed upon), oils, lubricants, water, steam, gas, oxygen, electricity, (compressed) air, drawings and other data, raw materials, and other items and services requested by Seller for rendering Services (including tests). This includes but is not limited to:
- a suitable work and storage space as close as possible to the location where the Services are to be performed;
- placing of Equipment at the installation area that is in an appropriate state to begin installation;
- all construction work inclusive of, but not limited to, the following: foundation, cabling, piping, anchor bolts, floor gutters, frames, grids, cover-plates, beams required for supporting the piping and cabling and for mounting overhead conveyors and Equipment to the roof structure;
- installation and mounting of the Equipment according to Supervision and instructions of Seller. Customer shall supply sufficient handling labor and handling equipment, including cranes and fork-lifts etc, for the unloading and placing of the Equipment;
- delivery, installation, and connection of all cables other than machine-internal cables, including power cables, data cables, control, and signaling cables, etc. from master control panels and operation centers to and between termination points on the individual pieces of the Equipment according to Seller’s diagrams, including separate, shielded cable ducts or cable pans for power and data in accordance with the specifications of Seller;
- standard IT hardware and software needed (if not included in the quotation);
- placing of main servers (if any) in a dry, clean, and air-conditioned room with sufficient telephone and data connections to Seller’s supervisor and online service;
- work permits and other permits required in the country where the Equipment has to be installed and/or Services have to be rendered.
6.2 Unless agreed otherwise in the Contract, Seller is not responsible for:
- interfaces between on the one hand its Equipment and/or Software and on the other hand items from or supplied by Customer or third parties;
- compatibility with other software and/or hardware of Customer and/or third parties;
- coordination between the work of Seller and other suppliers.
Article 7. Governmental regulations, Safety/Hygiene, Intended use, Federal Contractor
7.1 During the development of the Equipment Seller has, for the parts and components intended to come into contact with food, taken into account European Regulation 1935/2004/EC and Commission Regulation (EU) 10/2011 and for Equipment to be installed in the USA also FDA 21 Code of Federal Regulations part 170. For individual pieces of Equipment Seller has furthermore taken into account Machinery Directive 2006/42/EC, provided that Customer has installed safety devices that are its responsibility according to the Contract. Moreover, Equipment to be installed by Seller in the USA has been designed with guarding and safety according to Occupational Safety and Health Standards (OSHA) valid at the time of Contract signing. Seller does not guarantee that the Equipment meets all locally applicable regulations concerning safety and working conditions and other local regulations, unless this has been explicitly agreed in the Contract in writing. If before startup of the Equipment, an inspection by the local (supervisory) authorities is required, this is Customer’s responsibility.
7.2 Seller shall ensure that, during their work, its employees shall respect local safety legislation that is made known to it by Customer and accepted by Seller. Customer shall ensure that Seller’s employees can execute their work in a safe manner without risk to their health.
7.3 The Products are only intended for the use that is explicitly described in the Contract and Seller’s manuals. Any other use of the Products, even if it is known to Seller, is not Seller’s responsibility and cannot be deemed to be intended use.
7.4 Customer shall ensure that, before people are allowed to operate or clean or service the Products, they i) have read and understood the manuals issued by Seller, ii) made themselves familiar with the working of safety devices of the Equipment, iii) have understood the meaning of the warning signs used on the Equipment and iv) have received adequate training in relation to the Equipment.
7.5 Only applicable for Customers having their offices in the USA: As a federal contractor, Customer shall abide by the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans, individuals with disabilities, against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin or any other protected class covered under federal or state law. Moreover, if applicable, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, or disability.
Article 8. Software
8.1 If the Products include any Econord Software and Customer and Seller did not agree upon a separate license agreement for such software Seller grants to Customer a non-exclusive, non-transferable and non- licensable license to install such software on one database and to utilize said Econord Software, as embedded software or application software as the case may be, in the manner prescribed in the Contract. If the Contract only specifies specific modules and/or functionalities of such software then these rights only apply for these modules and/or functionalities. No further rights are granted. Unless agreed otherwise, use of the Econord Software by others than Customer’s employees or by more employees than for whom a license is acquired is prohibited. Seller retains the right to terminate this license to the extent that the terms of the license are violated or Customer otherwise breaches the terms of the Contract.
8.2 The ownership and all rights of industrial and intellectual property over the Econord Software remain at all times the property of Seller or Seller’s Affiliated Companies. Any copyright marks may not be removed by Customer.
8.3 Customer is entitled to make one copy of the Econord Software for back-up purposes, which must be labeled as a copy and affixed with any copyright identification of Seller or Seller’s Affiliated Companies.
8.4 Customer agrees not to change, decompile, analyze, re-engineer, or copy, except as expressly allowed herein, the Econord Software.
8.5 The source code of the Econord Software will not be made available to Customer.
8.6 Seller shall not be liable for loss of electronic data by Customer. It is Customer’s responsibility to make timely back-ups of the electronic data.
8.7 Maintenance and service of the Econord Software is conditioned on a separate software support agreement.
8.8 Upgrades and service packs for Econord software are deemed to be part of the license described in Article 8 and are delivered “as is” and are, except for the installation costs, at no cost to the Customer for the first year after Delivery, after which maintenance of the Econord software in question is conditioned on a separate maintenance agreement.
8.9 If the Products include Third Party Software, Seller will on behalf of Customer obtain an adequate license agreement for said software from the third party in question. Customer shall abide to the terms and conditions of such license agreement.
Article 9. Warranty and liability
9.1.1 Equipment: Seller, except as set forth below and except for cases of willful misconduct or Gross Negligence, warrants all Equipment, including parts and components hereof delivered by Seller, to be free of defects in design, materials, and workmanship for a period of twelve (12) months from the date of Delivery. No warranty is given for wear and tear parts and consumables. The warranty is conditioned on a maximum of eight (8) running hours for the Equipment in each twenty-four (24) hour period in a five-day work week. If the running hours of the Equipment exceed said number of hours, the warranty period shall be reduced proportionally. For items that are replaced under the warranty within the last 3 months of the warranty period a new one-time warranty period of 3 months shall apply.
9.1.2 Econord Software: Seller, except as set forth below and except for cases of willful misconduct or Gross Negligence, warrants during the above-mentioned warranty period that the Econord Software will not fail to perform substantially in accordance with the Contract due to defects in workmanship, provided that such possible defects are defined as reproducible deviations with respect to the software specifications provided by Seller, which were present at the moment of release and which substantially impair the use of the Equipment. However, Seller does not warrant that the operation of the Econord Software shall be uninterrupted or error free. Seller expressly waives any liability for lack of compatibility with or failures in computer hardware and/or firmware from a third party on which the Econord Software is installed, whether supplied by Seller or Customer.
9.1.3 Services: Any Services by Seller shall impose no obligation on Seller except to perform said activity using reasonable care and skill in a workmanlike manner and shall imply no warranty as to the completeness of the Service or as to the overall performance of the Equipment.
9.2 Seller incurs no warranty obligations (including liability obligations) if and to the extent:
- Customer fails to observe Seller’s instructions concerning the use, cleaning, and/or maintenance of the Equipment and/or Econord Software and this failure has caused the defect of the Equipment;
- Customer modifies or repairs the Equipment and/or Econord Software, allows a third party to do so or uses spare parts not approved by Seller for maintenance without Seller’s prior written permission;
- Customer fails to notify Seller of any defect immediately upon Customer’s discovery of the defect or in any event within seven (7) days after the discovery of the defect;
- the defect is due to normal wear and tear, misuse, sub-standard operator performance, negligence, external causes (crash, irregular power supply, and the like), use of other raw materials than specified, or is caused by force majeure;
- the defect arises from electromagnetic interference (EMI), radio frequency interference (RFI), lack of electromagnetic compatibility (EMC), lightning, or similar causes;
- the defect arises as a result of Seller following any drawing, design or specification supplied by Customer.
9.3 Subject to Section 9.2, if Customer gives notice in writing during the warranty period that the Products do not comply with the warranties set out in Article 9, Seller shall at its sole discretion remedy faults falling under the warranty free of charge either i) by repair of the faulty Equipment or Econord Software, whether or not at Customer’s location, or ii) by making replacement Equipment or Econord Software available at Seller’s premises, or iii) refund the price of the defective Equipment or Econord Software in full, or iv) by executing the defect Service again in a workmanlike manner at Customer’s location. If the Equipment or Econord Software has been installed or the Services have been rendered on a vessel then Customer’s location shall be deemed to be the closest harbor to Seller’s premises. If these remedies, after a reasonable number of attempts, do not remedy the defect, Customer may as the sole and exclusive remedy ask for reimbursement of the purchase price paid for the defective part (or the specific piece of Equipment or Econord Software in which the defective part is incorporated if as a consequence of the defect such piece of Equipment or Econord Software cannot be used) or the defective Service, plus an amount of liquidated damages not exceeding 15% (fifteen percent) of the purchase price of the defective part or Service. To the extent permitted by the applicable law all other and/or further costs related to the remedy of Seller as described in section 9.3 (i) – (iv), including but not limited to transportation costs, travel, and accommodation expenses, labor costs, costs of disassembly and re-assembly, and costs to solve problems that are not covered by the warranty, shall be at the expense and risk of Customer.
9.4 SELLER MAKES NO WARRANTIES, EXCEPT AS SET FORTH IN SECTIONS 9.1.1, 9.1.2, AND 9.1.3, AND ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
Article 10. Limitation of liability
10.1 Subject to the other limitations of liability described in this Article 10, Seller can only be liable for i) injuries and deaths caused to persons who are using the Products according to the manual supplied by Seller if and to the extent that the injury or death is caused by a defect in the Equipment and/or Econord Software or negligence of Seller, and/or ii) damages caused to Customer’s moveable assets, if the damage is caused by a defect in the Equipment and/or Econord Software or negligence of Seller.
10.2 In no event shall Seller, its suppliers, or its subcontractors be liable for any loss of profit, loss of revenue, loss of or damage to electronic data, claims of third parties of whatever nature, substitute equipment or supply sources, and any special, incidental, indirect, and/or consequential damages of any nature whatsoever, including, but not limited to, diminution in value of goods processed with the Equipment, costs of capital, cleaning costs, recall costs, extra labor, overhead, transportation, lay time of a vessel, etc.
10.3 In cases in which Seller, its suppliers or its sub-contractors can be held liable, the aggregate liability shall be limited to an amount not exceeding 50% (fifty percent) of the price of the particular component or item of Product or Third Party Software that caused the damage.
10.4 Furthermore, after acceptance of the Products by Customer the sole liability of Seller regarding its obligations to fulfill the Contract is limited to fulfillment of the warranty obligations as specified in Article 9 and Seller shall not be liable for defects and resulting damages for a period exceeding the warranty period.
10.5 The limitations of liability described in these GTC apply whatever the legal ground of the claim might be (contract, tort, negligence, strict liability, product liability, warranty, indemnity, or any other legal ground), but shall not apply in case of Gross Negligence or willful misconduct by Seller.
10.6 Customer shall indemnify and hold Seller harmless for any claim by any employee or agent of Customer or any third party for damage or death/personal injury which is directly or indirectly caused by the non-compliance of Customer or personnel of Customer or any third party with Seller’s safety, operation, and/or maintenance instructions. Said indemnification includes reasonable costs incurred by Seller and reasonable attorney fees and expenses paid by Seller.
Article 11. Default of Customer
Customer recognizes that any breach of the Contract will result in irreparable injury to Seller and that monetary damages alone will be an inadequate remedy in such case. Therefore if Customer breaches the Contract and does not remedy this breach within a reasonable period after receipt of a written notice of default, Seller may at its own discretion choose one or more of the following remedies:
- request an injunction or restraining order;
- choose to carry out or employ a third party to carry out Customer’s obligations, or otherwise take such measures as under the circumstances are appropriate in order to minimize the effects of Customer’s default all at the expense of Customer;
- suspend its performance of the Contract wholly or in part;
- demand due performance of the Contract;
- claim damages and any reasonable costs (including legal fees) caused by the default; and/or,
- any other remedy provided by the Contract or applicable law (except termination that is settled in other Articles of these GTC or the Contract).
In case of a default of Customer and in case of bankruptcy, (provisional) suspension of payment, receivership (or comparable situation in the country in which Customer has its offices) of Customer, Seller has the right to immediately claim all outstanding amounts due under the Contract.
Article 12. Termination of Contract
Except for the situation described in Articles 13, 14, and 17 the parties are only entitled to terminate the Contract in case of repeated fundamental breach of the obligations by the other party that is not remedied within a reasonable period of time after receipt of a written notice of default. Mistakes in transport documents or a delay in Delivery by Seller not exceeding 6 (six) weeks are not considered as a fundamental breach. Termination can be for the whole Contract or part of the Contract. However, if partial termination is more reasonable taking into account all circumstances then only partial termination is possible.
In case of termination of the Contract any amounts already received by Seller shall be deemed to be liquidated damages paid, or to be paid, by Customer and Seller shall be entitled to claim further damages if these exceed the amount of liquidated damages.
Article 13. Force Majeure
Neither Seller nor Customer shall be deemed to be in default of or to have breached any provision of the Contract or the GTC (inclusive warranty provisions) as a result of any delay, failure in performance or interruption of service resulting directly or indirectly from events of force majeure, whether or not the events were foreseeable at the time of the execution of the Contract. Force majeure includes but is not limited to acts of God, strikes, lock outs, or other industrial disturbances, labor shortages, war, blockades, transport and custom problems, import or export regulations or embargoes, civil disturbances, epidemics, direct or indirect government action (including legislation and regulations), shortage of or inability to obtain raw materials, casting faults, and any other circumstances beyond the reasonable control of the party affected. Force majeure does not include the inability of Customer to pay the purchase price for whatsoever reason.
In the event of force majeure the party invoking force majeure shall give written notice of the start and the end of the force majeure circumstance to the other party within two (2) weeks after the force majeure event started respectively ended.
In the event of a party invoking force majeure, the obligations of both Seller and Customer can be suspended as long as the force majeure situation lasts. If the force majeure continues for a period exceeding six (6) months, both Seller and Customer shall have the right to terminate the Contract without further liability each to the other, except liability which has already accrued other than by reason of the force majeure.
Article 14. Intellectual and Industrial Property Rights, Confidentiality
14.1 Seller retains all intellectual and industrial property rights with regard to the Equipment and/or Econord Software. Customer agrees not to assert any intellectual/industrial property rights in the Equipment and/or Econord Software, in any modification by Seller to the Equipment and/or Econord Software, in any processes relating to the Equipment and/or Econord Software, and/or any in other matter that is a reasonable extension of the function or functionality of the Equipment and/or Econord Software.
14.2 To the best of Seller’s knowledge the Equipment provided does not at the moment that the Contract is signed infringe intellectual and/or industrial property rights of third parties valid at the place where the Equipment shall be installed by Seller. If the Equipment nevertheless at the moment that the Contract is signed violates any such intellectual and/or industrial property rights, Seller shall at its discretion:
- procure for Customer the continued right to use the Equipment;
- modify the Equipment so that it is non-infringing;
- replace the Equipment with non-infringing Equipment; or
- terminate the Contract or a part of the Contract and return the purchase price (minus a reasonable amount for depreciation) that relates to the infringing part of the Equipment that Customer has paid, provided the Equipment is returned to Seller.
14.3 Seller’s obligations mentioned in Sections 14.1 and 14.2 do not apply if Customer does not inform Seller without unreasonable delay of the alleged infringement, does not give Seller the possibility to take over the defense or does or omits anything thus harming the position of Seller.
14.4 All other liability of Seller for infringement of intellectual or industrial property rights of third parties is, except for Gross Negligence or willful misconduct of Seller, excluded.
14.5 In no event shall Seller be liable to any third party for any claim of intellectual and/or industrial property infringement with respect to the Products, if the claim is related to illustrations, drawings, catalogs, specifications, or other materials supplied to Seller by or on behalf of Customer and Customer shall fully indemnify and hold harmless Seller for such claims.
14.6 All information and documentation furnished to Customer by Seller shall, unless explicitly agreed otherwise in writing, remain the property of Seller, may not be copied by Customer, and shall not be disclosed to any third parties by Customer, and shall only be used by Customer for the purpose for which it was disclosed.
Article 15. Services
15.1 Services to be rendered are limited to what is described in the Contract or special service level agreement. If there is no such Contract or special service level agreement and nevertheless Services are rendered then the Services are limited to what is specified in the invoice sent by Seller for such Services and the fees to be charged by Seller shall be the rates applied by Seller at the time that the Services were rendered. Unless specifically otherwise agreed in writing, during Services Seller is not obliged to inspect if all safety devices of its Equipment are still functional.
15.2 Seller’s supervisors will be required to give general advice and guidance in the English language (or any other language agreed upon) for the installation of materials supplied by Seller, but Seller and Seller’s supervisor will not be responsible for bad workmanship and work not carried out by persons acting for or on behalf of Customer in accordance with advice given by or on behalf of Seller and drawings and specifications provided by Seller. Neither Seller nor Seller’s supervisors are expected to check if all instructions are executed properly.
Article 16 Privacy
In order to i) administer and fulfill Seller’s obligations under the Contract, ii) offer Service for the Products in the future, iii) inform Customer about fairs/exhibitions/new products that Seller might offer, and iv) fulfill Seller’s regulatory obligations including import and export regulations, anti-bribery regulations and anti-money laundering regulations, Seller (and/or one or more of Seller’s Affiliated Companies) will store and process the data of Customer and its representatives/contact persons in accordance with the applicable data protection laws.
The data that may be processed, include (personal) data like names, corporate names, contact details of Customer (address, telephone and fax numbers, email address, registrations numbers, bank details), invoice and payment information, details of contact persons (name, function, location, title, address, telephone and fax number, email address), as well as the history of the contractual relationship.
Before disclosing any personal data to Seller, Customer must ensure that the data subjects of this personal data gave their appropriate consent for the personal data processing as described in this Article 16 if so prescribed by the applicable data privacy laws and regulations
Seller (and involved Seller’s Affiliated Companies) may contract with third party service providers as part of its/their normal business operations in connection with finance, accounting, compliance, and other administrative functions and these service providers may have access to the data.
Data recipients may be located inside or outside the European Economic Area (“EEA”), including in countries which do not adduce the same level of protection of personal data as in the EEA. When appropriate and if required under applicable data protection laws, Seller (and involved Seller’s Affiliated Companies) will require via contractual measures (if applicable, based on the unmodified European Commission Model Clauses) or otherwise that such data recipients maintain adequate technical and organizational security measures to safeguard personal data.
Seller (and involved Seller’s Affiliated Companies) will also take reasonable measures to ensure that personal data will be protected in accordance with statutory requirements. If the processed personal data should be removed from Seller’s files or have to be updated, Customer or its representative/contact person can send an email to the address of Seller indicated in the Contract and Seller will take reasonable measures to realize this request to the extent required. The same applies if Customer would like to know which personal data related to Customer and/or its representatives/contact persons are processed. Such information shall be given free of charge every year if asked for in writing.
Article 17 Compliance:
Customer confirms in connection with this Contract and/or the business resulting therefrom that:
- neither Customer nor Customer Personnel is a restricted party under the Sanctions Rules;
- neither Customer nor Customer Personnel is owned or controlled by one or more restricted parties under the Sanctions Rules;
- Customer will immediately inform Seller should Customer and/or any of Customer Personnel become a restricted party under the Sanctions Rules;
- Customer will at all times act in compliance with the Anti-Corruption Laws;
- Customer will at all times act in compliance with the Sanctions Rules, in particular but not limited to the prohibition to make funds or economic resources available, directly or indirectly, to or for the benefit of any person, entity or body targeted as a restricted party under Sanctions Rules, unless authorized by a relevant authority to the satisfaction of Seller;
- Customer will at all times act in compliance with any applicable import and/or export laws and regulations; and
- Customer will not do anything which is otherwise in breach of, or would cause Seller to be in breach of, any Anti-Corruption Laws or Sanctions Rules.
Seller shall not be obliged to perform any obligation under this Contract, and shall not be liable for damages or costs of any kind (including but not limited to penalties) for any delay or non-performance, if Seller in its sole discretion determines that such performance would be in violation of, inconsistent with, or could expose Seller to any negative consequences under Anti-Corruption Laws, or Sanctions Rules.
Seller may terminate this Contract immediately upon written notice to Customer where Seller determines in its sole discretion that Customer has breached this Compliance Clause, and Customer shall indemnify Seller from all damages, penalties, fines, and/or costs of any kind arising from, or relating to, any breach of this Compliance Clause. This Compliance Clause shall survive any termination of the Contract.
Article 18. Survival of Terms
After termination, dissolution or invalidation of the GTC and/or the Contract for whatever reason, the GTC and/or the Contract continue to apply insofar as these have independent significance and/or insofar as required for the regulation of the consequences of the termination, dissolution, or invalidation, including but not limited to the provisions concerning secrecy, liability and limitation thereof, legal jurisdiction and applicable law. If any part of the GTC or the Contract is determined to be void or unenforceable, the rest of the GTC and/or the Contract may still be enforced and the unenforceable or void provision shall be replaced by a new provision approximating the nature and scope of the unreasonable or invalid provision as much as possible.
Article 19. Sole Agreement
The GTC and the terms of the Contract constitute the entire agreement between Seller and Customer regarding the sale and purchase of Products, and replace all prior agreements or representations, written or oral, if there be any. Customer acknowledges that it has not relied on any statement, promise, representation, assurance, or warranty made or given by or on behalf of the Seller which is not set out in the Contract
Article 20. Additional Provisions
20.1 Weights, measures, capacities, yields, and other data mentioned in sales brochures, advertisements, and the like and samples shown or provided have the character of indications.
20.2 Seller does not allow transfer of warranty rights, licenses, or other rights granted under the Contract without the prior written permission of Seller.
20.3 The headings in the GTC are only for purposes of clarification. References in the GTC to specific regulations and laws also include the successors of these.
22.4 Seller reserves the right to change the design and execution of the Equipment and/or Econord Software if, in its judgment, this is reasonably non-detrimental to the quality.
20.5 Neither party can assign its rights or obligations under the Contract to a third party, without the prior written consent of the other party, except that Seller is at all times entitled to ask Seller’s Affiliated Companies to execute part of the Contract on Seller’s behalf. In this latter situation Seller stays fully responsible for acts or omissions of such affiliated company.
20.6 No rule of construction applies to the disadvantage of a party on the basis that the party puts forward the Contract (inclusive these general terms and conditions).
Article 21. Governing Law and Jurisdiction
21.1 All legal relationships (contractual and non-contractual) between Seller and Customer, including these GTC, shall be governed and interpreted in accordance with the respective laws that apply in the country/state in which Seller has its registered offices. For domestic sales in the USA the Uniform Commercial Code (UCC) as implemented in the state in which Seller has its registered offices shall also be applied. In all other instances, even if it is a domestic sale, the United Nations Convention on the International Sale of Goods of 1980 (CISG) shall also be applied and prevail over the local applicable law, except when it contradicts imperative local law, which shall prevail.
21.2 The party intending to start dispute settlement as described in section 21.3 should first inform the other party in writing about the dispute, controversy, or claim referring to this section 21.2 and then the parties shall confer at least once within 21 (twenty one) days after the notice has been sent, to try to resolve the dispute/controversy/claim or to agree on methods of doing so. At such conference each party shall be represented by a person having authority to agree to such resolution or method and alleged claims and counterclaims should be discussed. All aspects of such conference, except the fact of its occurrence, shall be confidential. If for whatever reason no conference is held in time or no resolution is agreed upon then each party can refer the dispute to dispute settlement as described in section 21.3.
21.3 Any dispute, controversy or claim arising out of or in connection with the GTC, the Contract, and/or any legal relationship arising from it, including any disputes regarding the existence, validity, or termination, shall be finally settled under the then in force Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules. The seat of arbitration and place of the hearings shall be the place where Seller has its registered office. The language of arbitration shall be English. The parties shall keep confidential and not disclose to any non-party, all non-public materials and information provided in the arbitration by another party. Notwithstanding the foregoing, a party may disclose such information to the extent necessary to i) prosecute or defend the arbitration or proceedings related to it (including enforcement or annulment procedures), or to pursue a legal right, and ii) respond to legitimate subpoena, governmental request, or stock exchange request for information or another comparable compulsory process. Furthermore, a party may disclose such information to its investors or potential acquirers of its business or experts/witnesses that it wishes to appoint in the arbitration procedure if the recipient has agreed in advance to preserve confidentiality of the information.
21.4 Seller may also start legal action before the competent state courts in the place where Customer has its office or where the Equipment is located, and if this would only be possible if the applicable law will be the law that applies in the country of such competent court then Seller may request the court to apply such law. This exclusion does not constitute a waiver of the right of Seller to submit any dispute for arbitration.
Article 22. Amendments and Waiver
The terms and conditions set forth herein and the Contract may be amended or waived only in writing signed by authorized representatives of both parties. No waiver of any term or condition shall be understood as a waiver of any other term or condition, or as a waiver of any subsequent breach of the same term or condition.