General Terms and Conditions of Sale - SGX Sensortech SGX Sensortech

General Terms and Conditions of Sale

SGX Sensortech (I.S.) Ltd General Terms and Conditions of Sale

1. GENERAL
a. These terms and conditions (“Terms and Conditions”) together with the written quotation (“Quotation”) shall govern the sale and provision by SGX Europe Sp. z o.o. (“SGX Europe”) of any goods and any related services (“Products”) to the Customer and shall prevail over and apply in precedence to any other document, term or condition. These terms and conditions form a part of all Quotations for Products issued by SGX Europe, and a contract shall be executed by the Customer upon its placing an order for Products (“Order”) which shall equal acceptance of these Terms and Conditions (these Terms and Conditions and the Quotation and Order shall form jointly the “Contract”). Any other additional or differing terms and conditions proposed by the Customer concerning any Products shall be deemed proposals for modification of these Terms and Conditions, but shall be deemed objected to and of no effect unless expressly agreed-to in writing by an authorized representative of SGX Europe. No Contract shall come into existence unless and until a written acknowledgement of Order is issued by SGX Europe. Where there is conflict between any provisions of these Terms and Conditions and a Quotation, the provisions in the Quotation shall prevail.
b. Products are only available and prices are only valid as stated in a Quotation. Unless otherwise stated, a Quotation is valid for 30 (thirty) days from its date unless it is withdrawn or extended in writing. Notwithstanding the foregoing, SGX Europe shall have the right, at any time, to increase the price of any Product with respect to which SGX Europe’s cost of raw materials and purchased components included in the Product increases by 5% or more. Any such price increase shall become effective upon written notice to the Customer accompanied by a statement from SGX Europe confirming that such costs have increased by 5% or more.
c. In the event that the Customer requests amendments to the description of Products in the Quotation issued by SGX Europe, such requested amendments shall only be accepted if SGX Europe, in SGX Europe’s sole discretion, provides the Customer an order acknowledgement endorsed “Amended”. The quantity, quality and description of the Products shall be as set out in the Quotation or Amended Quotation, if any, issued by SGX Europe.
d. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
e. No waiver by SGX Europe of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
f. SGX Europe reserves the right to apply an administration charge for small value or small quantity orders. Further, where the Customer does not indicate its transport in the Order, a transport charge shall be applied to cover the costs of delivery by courier or air transport and courier, based on calculations by SGX Europe which shall be added to the invoice or pro forma invoice.

2. PAYMENT
a. Unless the Parties agree otherwise in writing, payment shall be in the currency specified in the Quotation and, unless otherwise agreed, shall be due and payable in full within 14 (fourteen) days of the date of the invoice or in advance under a pro forma invoice. SGX Europe shall send the invoice to the Customer together with the Products on the date of Product delivery (or, if the Products are services, upon commencement of those services), or, if SGX Europe is unable by reason of instructions or lack of instructions from the Customer to deliver the Products, SGX Europe shall invoice the Customer upon the intended date of delivery. Upon subsequent delivery of the delayed Products, SGX Europe shall invoice the Customer for storage in accordance with Clause 3c.
b. If SGX Europe at any time determines, in its sole and absolute discretion, that the Customer is not trustworthy, including in financial terms, or may be unable to pay, in full and in a timely manner, all amounts due to SGX Europe, SGX Europe shall have the right to require payment in full, before delivery of any Product.
c. In the event the Customer orders quantities of Products with associated price breaks and fails to take these quantities within the agreed timescales for delivery then SGX Europe reserves the right to amend the prices according to the actual quantity of Products delivered to the Customer.
d. The Customer is not entitled to withhold or set off any sums due under invoices received from SGX Europe.
e. Where the Customer challenges the amount under an invoice, the Customer shall notify SGX Europe thereof within 15 (fifteen) days of the date of invoice. If the Customer’s dispute is held valid, SGX Europe shall credit the Customer the disputed amount in the next invoice to the Customer.
f. If the Customer fails to pay any sum due to SGX Europe by its due date, the Customer shall pay to SGX Europe, in addition to such sum or sums due, interest thereon at the prevailing statutory rate on late payment, calculated on a daily basis together with any additional costs and expenses incurred by SGX Europe and SGX Europe may at its sole discretion and without liability postpone delivery or cancel all or part of the Contract or any other contract between the Customer and SGX Europe without prejudice to any other right or remedy which SGX Europe may have against the Customer in respect of such default.
g. All payments due under the Contract shall be paid in gross amounts by the Customer, in particular the Customer is obliged to pay all taxes and customs duties.
h. If payments received from the Customer are not stated to a particular invoice SGX Europe may apply such payments to any outstanding invoice.

3. DELIVERY AND TRANSFER OF RISK OF LOSS
a. The times, places and terms of delivery are as specified in the Quotation. Delivery shall be Ex Works SGX Europe Katowice Incoterms 2010, unless otherwise specified. Quoted delivery times shall be regarded as estimates. SGX Europe may ship and deliver the Products in instalments and no partial shipment or delivery shall constitute a breach by SGX Europe. Risk against loss or damage to all or any of the Products shall transfer from SGX Europe to the Customer upon delivery in accordance with the specified Incoterm.
b. Delivery will be subject to receipt by SGX Europe of any necessary export licences, documentation or requirements. In the event these cannot be obtained by SGX Europe, SGX Europe will be entitled to terminate the Contract with immediate effect without any liability.
c. If the Customer fails to take delivery of the Products or any part thereof on the due date or fails to provide instructions or documents required to enable the Products to be delivered on the due date, SGX Europe may, on giving written notice to the Customer, store or arrange for the storage of the Products, and on the service of such notice: (i) risk in the Products shall pass to the Customer; (ii) the delivery of the Products shall be deemed to have taken place; and (iii) the Customer shall pay to SGX Europe all costs and expenses including storage and insurance charges arising from its failure.

4. INSPECTION AND ACCEPTANCE
a. The Customer shall inspect the Products upon delivery and may reject any Products that do not conform to the Contract, provided written notification of such rejection is submitted to SGX Europe, within 15 (fifteen) days of delivery. Products not notified as rejected within 15 (fifteen) days of delivery will be deemed to be accepted.

5. TRANSFER OF TITLE
a. Title in Products will transfer from SGX Europe to the Customer only upon receipt by SGX Europe of payment in full for the Products. SGX Europe will be entitled to recover payment of the Products notwithstanding that title in any of the Products has not passed from SGX Europe.
b. Until such time as the title in the Products passes to the Customer: (i) the Customer must not destroy, deface or obscure any identifying mark or packaging on or relating to the Products and must maintain the Products in a satisfactory condition insured for the benefit of SGX for their full price against all risks; and (ii) SGX Europe may, without prejudice to any other rights or remedies available to it, repossess any or all of the Products. For the purpose of so taking possession, the Customer hereby grants SGX Europe irrevocable authority without notice to enter the Customer’s premises for the purpose of collecting and removing the Products.

6. WARRANTY
a. SGX Europe warrants the Products in accordance with the conditions of SGX Europe Standard Warranty Leaflet. All other warranties are excluded to the extent permitted by law.
b. The Customer warrants that it will be responsible for (and will finance the costs of) the collection, treatment, recovery and environmentally sound disposal of all product waste at its end-of-life for any product supplied by SGX Europe, in accordance with all applicable legislation.

7. LIMITATION OF LIABILITY
a. Subject to Clause 7(c), SGX Europe shall not be liable to the Customer by reason of any breach of Contract or of statutory duty or by reason of tort (including, but not limited to, negligence of any degree) for any loss of profit, loss of revenue, loss of use, loss of production or opportunity, loss of contracts or for any financial or economic loss or for any consequential, incidental or indirect loss, howsoever arising, that may be suffered by the Customer or by any third party.
b. Subject to Clause 7(c), in no event shall SGX Europe’s total liability under or in connection with the Contract exceed 15% of the Contract price, in full and final settlement of all Customer claims arising hereunder, and the Customer and SGX Europe expressly agree that this limitation is an adequate remedy in any such case.
c. No provision of the Contract shall limit or exclude the liability of SGX Europe for wilful damage done by SGX Europe and for personal injury, including death or bodily harm, caused wilfully by SGX Europe including in relation to a false statement made by SGX Europe.

8. MODIFICATIONS
a. SGX Europe reserves the right, without notice to or consent by the Customer, to make minor modifications to Product specifications, design or materials as SGX Europe deems necessary. No alteration or modification to a Product which affects the price to be paid or time of delivery shall be made without the prior agreement of the Customer, which shall not be unreasonably withheld.

9. ASSIGNMENT
a. The Customer shall not, without SGX Europe’s prior written consent, assign or pass any of its rights or obligations under the Contract to any third party, including whether in connection with any change of control, the sale, transfer, merger, assignment or other reorganization affecting Customer to any degree including the Customer’s capital, whether by way of merger, sale, consolidation, or otherwise. Any attempted assignment in violation of this provision shall be void, and shall be considered as a breach of Contract by the Customer subject to the provisions of Clause 14a. SGX Europe may assign any of its rights and obligations under the Contract.

10. FORCE MAJEURE AND EXTENSION OF TIME
a. SGX Europe shall not be liable for any failure to perform its obligations that are due to any circumstances beyond its reasonable control (“Force Majeure Event”) including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or any inability to obtain any necessary import or export licences or other consents of any government. If any Force Majeure Event occurs SGX Europe shall automatically be entitled to an extension of time for such period as is necessary to perform its obligations under the Contract and the Customer shall have no claims whatever against SGX Europe in respect of such delay in performance.

11. CONFIDENTIAL INFORMATION
a. The Customer agrees that it has not provided SGX Europe with any confidential information and that SGX Europe has no confidentiality obligation to the Customer. No obligations of confidentiality will be accepted by SGX Europe other than in pursuance of a formal written agreement.
b. The Customer shall keep confidential all confidential information provided to the Customer by SGX Europe.

12. INTELLECTUAL PROPERTY
a. All intellectual property rights (including invention patents, protection rights to trademarks or industrial designs or copyright to any design/technical documentation) relating to Products or parts thereof supplied by SGX Europe in the performance of the Contract shall remain SGX Europe’s absolute property. The Customer shall not reproduce or disclose SGX Europe’s designs, drawings, specifications or information to any third party or copy or reverse engineer (or cause or enable any third party to copy or reverse engineer) any of the Products.

13. INDEMNITY
a. SGX Europe will indemnify the Customer against any claim by third parties that the ordinary use or sale of the Products or part thereof supplied by SGX Europe to the Customer infringes the intellectual property rights of the third party, and against all reasonable costs and damages which the Customer incurs in any resultant action, provided always that this indemnity shall not apply to any infringement:
(i) which is due to SGX Europe having followed a design or instruction furnished or given by the Customer, or to the use of the Products or part thereof in a manner or for a purpose or in a country not specified or disclosed to SGX Europe, or
(ii) which is due to the use of the Products or parts thereof together with or in combination with any other article, material or apparatus, or
(iii) where SGX Europe procures for the Customer the right to continue to use the Products or parts thereof or SGX has modified or replaced the Products or parts thereof.
b. The indemnity in Clause 13a is conditional upon:
(i) the Customer giving to SGX Europe the earliest possible notice in writing of any claim being made or action being threatened or brought against the Customer;
(ii) the Customer permitting SGX Europe at its own expense to conduct any litigation that may ensue and/or all negotiations for a settlement of a claim; and
(iii) the Customer not making any admission which is or may be prejudicial to SGX Europe.
c. The indemnity in Clause 13a is given in lieu of any or all liabilities which SGX Europe might otherwise have in relation to any infringement or alleged infringement of any patent or other right.
d. The Customer shall indemnify SGX Europe regarding the use of designs or instructions furnished by the Customer to the same extent as SGX Europe’s indemnity in Clause 13a above.

14. TERMINATION
a. For cause: If: (i) the Customer commits any breach of its obligations; or makes any arrangement with its creditors or any other arrangement or situation which has a like effect including without limitation a change of company control, commits any act of bankruptcy or becomes insolvent; or (ii) SGX Europe has reasonable grounds to suspect the Customer has violated any applicable law or regulation, including, but not limited to anti-corruption laws; then SGX Europe may terminate, cancel or suspend its performance of the Contract or any other contract between the Customer and SGX Europe immediately, or postpone delivery of all or any part of the Products or all or any part of any other order placed by the Customer with SGX Europe. SGX Europe also may terminate the Contract, upon written notice to the Customer, if SGX Europe suffers any Force Majeure Event. In the event of a termination, it shall be treated as a Customer termination for convenience and the parties shall proceed in accordance with Clause 14c, except that SGX Europe shall retain any and all additional rights and remedies available under the Contract and at law which may include indemnification for liabilities incurred by SGX Europe arising from the Customer’s act or omission.
b. For SGX Europe’s convenience: SGX Europe may terminate any Contract on giving 90 (ninety) days’ notice to the Customer, and Customer shall remain liable for payment of: (i) the Contract price for all Product delivered to Customer prior to such termination and the actual cost incurred by SGX Europe, plus a mark-up of 12 percent (12%) of such cost, for partially completed Products and associated work-in-process which, upon payment, shall be delivered to Customer.
c. For Customer’s convenience: The Customer may cancel or terminate the Contract only with the prior written consent of SGX Europe and only upon such terms as SGX Europe, in its sole and absolute discretion, may agree. In the event of termination within 30 (thirty) days prior to the acknowledged delivery date the Customer will be liable to SGX Europe for the full Contract value terminated. In the event of termination outside one month but within 60 (sixty) days prior to the acknowledged delivery date the Customer’s liability will be the higher of, (i) the costs incurred by SGX Europe, including those incurred as a result of the termination, or (ii) 50% of the Contract price for the terminated Products. In the event of termination outside 60 (sixty) days prior to the acknowledged delivery date the Customer will be liable for all the costs incurred by SGX Europe as a result of the termination, including the work in process for all Products not previously accepted by Customer (Customer shall remain liable for the full Contract price of all Product delivered prior to termination).
d. For SGX Europe default: SGX Europe shall be liable for the Customer’s reasonable and demonstrable excess reprocurement costs up to the maximum liability detailed in Clause 7b for the terminated portion of the Contract, in full and final settlement of all claims arising hereunder. All other remedies by law are hereby expressly excluded.
e. SGX may exercise any of the rights herein without any liability and without prejudice to any other right or remedy to which SGX Europe may be entitled by operation of law or otherwise, including without limitation the right to recover SGX’s costs with respect to work in progress and incidental costs. In addition, if any Force Majeure Event occurs and SGX Europe terminates the Contract, SGX Europe shall be entitled to retain any deposit or other amount paid by the Customer as of the date on which notice of such termination is provided, it being the express intent of SGX Europe and the Customer that the Customer shall bear the risk of loss of its deposit or other amounts paid to SGX prior to delivery as a result of any Force Majeure Event.

15. AMENDMENTS
a. All changes, modifications and amendments to the Contract must be agreed by the parties in writing. In the event that Customer representatives provide any direction, guidance or advise of any nature that SGX Europe deems to constitute a change to the requirements of the Contract, SGX Europe shall notify the Customer and a written modification shall be made to the Contract prior to SGX Europe having any obligation to proceed.

16. INTERPRETATION
a. In the event of a conflict between the English version of these terms and conditions and the Polish version, the Polish version shall prevail.

17. LAW AND JURISDICTION
a. The Contract shall in all respects be governed and construed in accordance with the laws of Poland and any unresolved disputes shall be resolved in a binding manner by the state court having jurisdiction over the registered seat of SGX Europe.