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GENERAL SALES CONDITIONS (July 1, 2017)
for the supply and delivery of goods and/or other services by IPTE Factory Automation.
The General Sales Conditions of IPTE Factory Automation (IPTE) shall apply to all quotations, agreements and other legal relationships, which concern the supply and delivery of goods and/or services by IPTE.
It is IPTE’s general policy that Quotations are drawn up and issued by IPTE’s Sales Organization for and on behalf of IPTE’s Product Centers.
The Products and Services have to be ordered directly from one of the following IPTE Product Centers:
• IPTE Factory Automation NV, Genk, Belgium
• Prodel Automation S.A.S., Carlepont, France
• Prodel Technologies S.A., Carlepont, France
• IPTE Iberia - Automação Industrial, Lda, Ovar, Portugal
• IPTE Spain S.L.U., Reus, Spain
• IPTE INDUSTRIAL AUTOMATION (SHANGHAI) Co. Ltd, Shanghai, People’s Republic of China
• IPTE Automation Oü, Tallinn, Estonia
• IPTE RO S.R.L, Oradea, Romania
The following expressions shall have the meaning hereby assigned to them unless the context would obviously require otherwise.
Acceptance Certificate: the written confirmation of acceptance of the Products or part of the Products to be issued by the Customer including Acceptance Test protocols indicating that the Acceptance Test requirements have been met.
Acceptance Test: test(s), to be carried out in accordance with Article 10, Acceptance.
Contract: the Contract concluded between Customer and IPTE as confirmed in IPTE‘s Order Confirmation issued by the IPTE Product Center, either by acceptance of the Quotation by Customer or otherwise. Until the Contract has been concluded between the Parties, the word “Contract” used in these General Sales Conditions shall mean the Quotation.
Contract Effective Date: the date upon which the Contract comes into force.
Customer: the party to whom IPTE has made a Quotation or from whom IPTE has received an order, or to whom IPTE has made an Order Confirmation or with whom IPTE has otherwise entered into a relationship wherein IPTE is the supplier of Products and/or Services and legal successors in title to the Customer and any assignee of the Customer approved by IPTE.
Date of Acceptance: the date(s) when the Products or part of the Products are actually accepted or deemed as accepted in accordance with Article 10 Acceptance.
Emergency: an unsuccessful restart, no product can be handled or processed or other similar situations.
Hardware: the equipment specified in the Contract or delivered by IPTE pursuant thereto.
Incoterms 2000: trade terms as issued by the International Chamber of Commerce in Paris.
Invoice: invoice send from IPTE Product Center to the customer.
IPTE: IPTE Factory Automation NV and all companies of which 50% (fifty percent) or more of the issued shares or voting rights are directly or indirectly owned by IPTE Factory Automation NV.
Installation: the installation of the Products to be performed in accordance with the Contract.
Intellectual Property Rights: copyrights, patents, drawing and model rights, trade names, trademarks, and all possible other intellectual property rights.
Order Confirmation: the order confirmation as issued by the IPTE Product Center.
Quotation: the quotation made by IPTE to Customer. In case a quotation is explicitly market “Budgetary Quotation” it is for information purpose only.
Parties: Customer and IPTE collectively.
Products: Hardware, Software, Documentation and all other goods and works that have been or will be supplied from IPTE to Customer.
Service(s): the services from IPTE to Customer specified in the Contract or pursuant thereto, such as - if applicable - consulting, Installation, maintenance and training.
Site(s): the actual location(s) where the Products or Part of Products are to be installed.
Software: any such computer program or software module in binary code form as specified in the Contract.
Specifications: the technical and functional specifications of the Products as specified in the Contract or in the standard documentation of IPTE.
System: means the Products insofar they form an integrated system specified in the Contract.
Territory: the country of Installation of the Products as defined in the Contract.
Words indicating the singular only also include the plural and vice versa, where the context so requires.
The headings of the Articles are for convenience only and shall not affect their interpretation.
2.1. These General Sales Conditions shall apply to all requests for Proposal, Quotations, Orders, Contracts, Invoices and other legal relationships between IPTE and Customer which concern the supply and delivery of Products and/or Services by IPTE to Customer. These General Sales Conditions shall be applicable in so far as in a specific agreement itself it is not expressly stipulated otherwise in writing.
2.2. If upon acceptance of the Quotation or otherwise Customer declares its general conditions applicable, the reference to these General Sales Conditions contained in IPTE’s Quotation and Order Confirmation shall be seen as the only reference made and these General Sales Conditions shall be applicable. The general conditions of the Customer shall not be applicable.
2.3. In the event Customer has once entered into an agreement or other legal relationship with IPTE, to which these General Sales Conditions apply, Customer shall be considered to have tacitly agreed to the applicability of these General Sales Conditions to future agreements and/or other legal relationships with IPTE.
3.1. Unless otherwise mentioned in the Quotation, the Quotation shall be valid for a period of thirty (30) days.
3.2. In case the Quotation is explicitly market “Budgetary Quotation” it is not binding in any way and only for information purpose.
3.3. A project Quotations is drawn up according to the written specifications handed to IPTE by the Customer. The Customer shall remain solely liable for any errors, omissions or inaccuracies, which might occur in these specifications.
4. ACCEPTANCE OF QUOTATION
4.1. The Customer is solely responsible for informing himself of the technical and commercial characteristics of the quotation.
5. ORDER CONFIRMATION
5.1. The Contract is only formed after acceptance by the IPTE Product Center of the Customer’s order by written Order Confirmation, dispatched within maximum 2 weeks of receipt of this order.
5.2. Only the Specification, the price and conditions as marked on the Order Confirmation shall be of contractual value and shall bind the parties. Consequently, documents exchanged between IPTE and the Customer prior to the Order Confirmation may not be considered contractual documents.
5.3. Any claim with regard to the Order Confirmation shall be made within a period of 8 (eight) clear days from the Order Confirmation date. Once this time limit has elapsed the Contract is definitively concluded, under the conditions marked in the Order Confirmation.
5.4. The Order Confirmation date, plus 8 days, will be considered the Contract Effective Date in case no claims are received.
5.5. In case a claim is received before the Contract Effective Date, both parties shall endeavour to settle this difference as soon as possible. The Contract Effective Date will be delayed until such agreement is reached.
5.6. The Contract conditions and in particular those relating to prices and delivery dates may only be modified by common written consent between IPTE and the Customer.
5.7. Due to continuous improvements and/or in view of satisfying the need and the appropriate execution of the order, IPTE reserves the right to modify products at any time, without prior notice, provided that the modification is functional identical.
6. PRICE AND PAYMENT
6.1. All Products and Services are sold and all prices are quoted EXW Ex-Works (IPTE Product Center place to be mentioned) in accordance with Incoterms 2010.
6.2. The prices are exclusive of VAT, unless otherwise mentioned.
6.3. Prices are quoted and payments shall be made in Euro unless stated otherwise.
6.4. If and insofar the Contract mentions that the price is fixed and firm this will be the case provided that:
6.4.1. the Contract Effective Date will occur not later than the validity date mentioned in the Quotation and shall not be varied, and
6.4.2. the Specifications shall not be varied, and
6.4.3. no clauses are mentioned in the Contract regarding price adjustments due to changes in economic conditions during the performance of the contract such as, but not limited to, general public published index figures (for cost of labour, material, living, etc.).
6.5. If and insofar prices are related to periodical payments, such as in the case of service contracts, IPTE has the right to change such prices annually as per January lst in line with general public published index figures (for cost of labour, material, living, etc.). IPTE shall take into account a notice period of thirty (30) days for such price changes. In the event such a price change results in a price raise higher than the index figure plus 3% (three percent), Customer shall have the right to terminate the Contract which termination shall have to take place by registered letter to be received by IPTE before January 1st.
6.6. In all cases, if and insofar the Contract applies to Services or deliveries to be made later than 3 (three) months after the date of signing of the Contract, IPTE reserves the right to change the fees and prices mentioned in the Contract.
6.7. Customer shall make all payments to IPTE in accordance with the payment terms mentioned in the Contract. In the absence of payment terms in the Contract, invoicing and payment of the Products shall take place upon delivery Ex-Works thereof and invoicing and payment of the Service shall take place upon performance thereof.
6.8. Payment shall take place within 30 (thirty) days after invoice date. In case of down payment at order, payment shall be made within 8 (eight) clear days of invoice date.
6.9. Payments have to be made by direct bank transfers at the bank account as stated in the Invoice. For payments within a country, the payment terms are net. For international transactions: all expensed in relation with the payment in IPTE’s Product Center country are to be born by the IPTE, those in the Customer’s country by the Customer.
6.10. The minimum total amount of an invoice is 100€ (one hundred Euro).
6.11. In the event of overdue payment, IPTE shall have the right to levy interest at a rate of 1.5% (one and a half percent) per month over the total amount overdue and IPTE shall furthermore have the right to demand payment of all of its cost incurred to collect the payment with an amount of at least 10% (ten percent) of the total overdue amount.
6.12. In the case of absence or suspension of payment, after formal notice by IPTE which has remained without effect for 15 (fifteen) days, IPTE reserves the right to suspend its own obligations until the overdue payment plus interest for lateness and all other related charges such as: legal cost, in-casso charges, etc. are received.
6.13. IPTE has the right to compensate all of its claims for payment against Customer with claims for payment from Customer against IPTE even if such claims are not related.
6.14. Each Party shall be responsible and liable for any and all taxes and social premiums related to employees or other persons involved by the respective Party in the execution of the Contract and the Parties shall hold each other harmless for claims regarding such taxes and social premiums.
7.1. Where it is found that any part of the Documentation supplied is incomplete and/or incorrect, the Party discovering such deficiency shall notify the other Party and IPTE shall promptly complete and/or correct such part of the Documentation and IPTE’s liability for the Documentation being incomplete or incorrect is limited to such rectification. The Documentation and information is supplied subject to the provisions of Article 12, Licence.
8. TITLE AND RISK, TRANSPORTATION, STORAGE AND INSURANCE
8.1. Risk of loss of and damage to the Products or Documentation shall pass to Customer upon delivery in accordance with the delivery term EXW Ex-Works (IPTE Product Center place mentioned in the Contract) according to lncoterms 2000.
8.2. The Products shall remain the property of IPTE until IPTE has received full payment in accordance with the Contract, and -notwithstanding Article 12, Licence- title to and ownership of the Products shall pass to Customer upon receipt by IPTE of such payment.
9. CUSTOMER’S UNDERTAKINGS
9.1. Customer shall - if and insofar applicable - in a timely and proper manner:
9.1.1. make the Sites available to IPTE’s personnel and subcontractors with all facilities as specified in the Contract, such as heat, light, ventilation, electric current and outlets, air pressure, telecom and datacom facilities and adequate storage space, at such times as are stipulated in the Contract or otherwise are reasonably required in order to enable IPTE to start up and without interruptions carry out delivery and Installation in accordance with the Contract;
9.1.2. provide IPTE with all information necessary for the design, engineering or Installation of the Products or otherwise necessary for IPTE to perform its obligations, such as, but not limited to, availability in time of design parts, test parts and parts for acceptance tests.
9.1.3. before any Product is put into service:
188.8.131.52. appraising the risks to the safety of the staff and assets and implementing the corresponding safety measures;
184.108.40.206. carrying out the installation and integration of Products, within its scope of use, in accordance with the standards, laws, regulations, agreements and professional practices;
220.127.116.11. evaluating the cost of interrupting operations and of making, in good time, all provisions for:
18.104.22.168.1. training the operating and maintenance staff,
22.214.171.124.2. providing the corresponding spare-parts,
126.96.36.199.3. estimating the duration of the period for installation and ramp-up,
188.8.131.52.4. carrying out the (preventative) maintenance work and keep proven record of such maintenance;
9.1.4. supply at its cost the parts and staff required to carry out Acceptance Test. The Customer shall insure that the parts supplied for the Acceptance Test are rigorously identical to the plans and/or samples supplied for drafting the Quotation and during the execution of the Contract;
9.1.5. otherwise assist IPTE in all respects reasonably required.
9.2. Should Customer fail to meet or be delayed in meeting its above mentioned undertakings, then Customer shall reimburse IPTE in respect of all related additional costs and expenses incurred without prejudice to IPTE’s right to postpone its undertakings. Such costs and expenses shall be paid within 30 (thirty) days from IPTE’s Invoice.
9.3. During the Contract period and for a period of six (6) months thereafter, Customer shall not employ or otherwise directly or indirectly hire or involve employees of IPTE that have been involved in the performance of the Contract.
10. ACCEPTANCE TEST
10.1. The Products sold is deemed to be in working order and shall therefore not be subject to any procedure for acceptance, except if agreed in the Contract.
10.2. Acceptance Tests - if and insofar applicable - shall be carried out in respect of the Products or each part of the Products at IPTE Product Center and/or during and directly after the Installation of the Products. The Acceptance Tests are designed to verify that the Products or part of the Products will operate and perform in accordance with the Specifications. The sequence and interrelation of the Acceptance Tests and the time plan for the Acceptance Tests are shown in the Contract.
10.3. If so mentioned in the Contract, Customer and/or IPTE shall carry out and complete the Acceptance Tests, the result of which shall be accounted for in a jointly signed protocol (Acceptance Certificate) designed to clearly verify whether the Acceptance Tests requirements are met or not. In case Customer does not attend the Acceptance Tests, IPTE shall have the right to carry out and complete the test and shall forthwith forward the protocol to Customer.
10.4. Within five (5) days from completion of the Acceptance Test, or in case the test was completed by IPTE in the absence of Customer, within five (5) days from the receipt by Customer of the protocol, Customer shall give IPTE a written notice stating whether or not the Products or part of Products (as the case may be) are accepted. When the Acceptance Test requirements are met, the Products or part of Products shall be deemed to be accepted.
10.5. If the Products or part of the Products are not accepted by Customer due to the fact that the Acceptance Test results verify that the Products or part of Products do not fulfil the Specifications, the above mentioned written notice shall specify the particulars of the alleged deviation from the Acceptance Test requirements and where the same is alleged to exist or to have occurred. IPTE shall without undue delay and at its own expense remedy reproducible deviations and the Acceptance Test Procedure for the relevant or affected part shall, if Customer so requires, be repeated in accordance with the provisions of this Article 10.
10.6. Acceptance of the Products or part of Products shall not be refused because of minor deviations which do not prevent the Products or part of Products to be put into operation. However, this will not relieve IPTE from its obligation to remedy said deviations without undue delay.
10.7. If IPTE has not received the said written notice from Customer, stating whether or not the Products or part of Products are accepted, within five (5) days after completion of the Acceptance Tests or from Customer’s receipt of the test protocol, as the case may be, the Products or Part of Products shall be deemed accepted as of the last day of said period of five (5) days.
10.8. If Customer should put the Products or part of Products into operational use prior to or without performance of the above mentioned Acceptance Test, such use shall be deemed as acceptance of the Products or part of Products.
10.9. When according to the above, the Products or part of Products are accepted or deemed accepted, such acceptance shall be confirmed by the issuance by Customer of an Acceptance Certificate. The Acceptance Certificate shall be issued promptly and at the latest three (3) days after IPTE’s written request. If the Acceptance Certificate has not been issued within such period, IPTE may on behalf of Customer issue such Acceptance Certificate.
11.1. If IPTE at any time has reason to believe that the performance of its obligations will be delayed, IPTE shall promptly notify Customer and shall subsequently define in writing the estimated period of delay.
11.2. Circumstances outside of IPTE’s control, including but not limited to circumstances which are attributable to Customer such as delay in payment or delay of any of Customer’s undertakings causing IPTE a delay, shall entitle IPTE to postpone any of its undertakings to such extent as is reasonable. For delays attributable to Customer, IPTE shall be reimbursed for its costs.
12.1. Subject to the terms and conditions set forth in this Article 12, Customer is hereby granted a nonexclusive and nontransferable licence to use the Software and Documentation for Customer’s own operation of the Products or part of the Products in accordance with the Contract.
12.2. Notwithstanding anything in the Contract to the contrary, it is understood that Customer receives no title or ownership rights to the Software or Documentation, and all such rights shall remain with IPTE or its suppliers.
12.3. Customer agrees that the Software and Documentation shall be treated as proprietary and a trade secret of IPTE or its suppliers, and shall be subject to the provisions of Article 20, Confidentiality.
12.4. In pursuance of the foregoing Customer shall, subject to mandatory provisions of national and or international laws governing copyrights, and to any other similar provision or regulations, which may complement or replace these acts,
12.4.1. not provide or make the Software or Documentation or any portions or aspects thereof (including any methods or concepts) available to any person except to its employees on a “need to know” basis;
12.4.2. not delete any copyright or other marking from the Software or Documentation;
12.4.3. not make any copies of Software or Documentation or parts thereof, except for archival backup purposes;
12.4.4. not use the Software or Documentation for any other purpose than permitted in this article or the Contract.
12.5. The obligations of Customer under this Article 12 shall survive the termination or expiration of the Contract for any reason.
12.6. In the event the Software or certain functions thereof licensed under the Contract are delivered in an inseparable package also containing other software programs or functions, Customer may not in any way use the other software programs or functions. However, upon Customer’s request IPTE shall offer a licence to use such other software programs or functions to Customer.
12.7. In the event the Software or Documentation originates from a third party supplier not being a part of the IPTE Group, the license conditions of such third party supplier shall prevail in variance of the above conditions of this Article.
13.1. IPTE warrants to repair, to correct or replace the Hardware or part thereof or Software or part thereof if the Hardware or part thereof or Software or part thereof would not conform to and function or operate in accordance with the Specifications by reason of defective material, design or workmanship.
13.2. SOFTWARE: IPTE shall, for a period of three (3) months from the respective Date of Acceptance or - if earlier - delivery of the Software or part of the Software, as the case may be, at its option, correct or replace, without expense to Customer, any part of Software and related Documentation found measurably not to function or operate in accordance with the Specifications, provided that Customer notifies IPTE of such non-conformities without undue delay from becoming aware
13.2.1. Such corrections or replacements, by the supply of updates of the Software, shall be made without undue delay from the date Customer (if applicable, in accordance with the procedure set forth in the Contract) has provided IPTE with a complete request related thereto and IPTE has acknowledged such request by sending a request receipt to Customer.
13.2.2. In the event of a non-conformity of an Emergency character, IPTE shall perform temporary corrections or replacements, as the case may be, without undue delay after Customer’s notification thereof to IPTE. Definitive corrections or replacements, by the supply of software updates, shall be performed thereafter.
13.2.3. Any corrected or replaced Software will be warranted for the remainder of the original warranty period which shall not be extended.
13.2.4. During the warranty period, the Installation of corrections and/or the Installation of replacement software updates shall be made by IPTE without expense to Customer. Documentation of corrected or replaced Software will be furnished
without expense to Customer.
13.2.5. For additional Software acquired by means of additional orders, the same Software warranty period shall apply, as described above with the exception, that the warranty shall only apply with respect to new functions in the additional Software (as specified in the Contract or otherwise) and that the warranty period is calculated from the date of delivery of
the additional Software.
13.2.6. IPTE does not guarantee that the Software is completely free from errors or defects.
13.3. HARDWARE: IPTE shall, for a period of twelve (12) months or 2000 (two thousand) h. from delivery date Ex-Works, plus 1 (one) month in case of installation, of the Hardware or part of the Hardware as the case may be, at it’s option, repair or replace, any part of the Hardware, not to be in conformity with the Specifications by reason of defective material, design or workmanship, provided that Customer notifies IPTE of such non-conformities without undue delay from becoming aware of them.
13.3.1. The duration of the warranty of repaired and/or replaced Hardware is three months or is extended until the remainder of the original warranty period of the Product, which shall not be extended.
13.3.2. Such repairs or replacements of the Hardware shall be made without undue delay from the date Customer has provided IPTE with a complete request related thereto and IPTE has acknowledged such request by sending a request receipt to Customer.
13.3.3. The warranty includes solely the free repair and/or replacement of the Hardware acknowledged to be defective, returned to IPTE Product Center, exclusive of all other costs, charges and indemnities of any nature.
13.3.4. Hardware which is sent to replace (presumed) defective Hardware will be shipped by IPTE free of charge to the Customer.
13.3.5. The Hardware presumed to be defective, at the request of IPTE, must be returned to IPTE free of charge. IPTE will not accept the Hardware when it is not sent free of charge.
13.3.6. In the event, upon investigation by IPTE of the failure, it is found that the presumed defective Hardware was not the cause of the failure, the with clause 13.3.4. related cost will be invoiced to the customer.
13.3.7. All transportation costs and risk of loss incurred with respect to the repair and /or replacement of defective goods shall be borne by Customer when returned to IPTE, and by IPTE when returned to Customer, transportation being by normally scheduled surface carrier, unless otherwise agreed.
13.4. In certain cases, rather than proceed with the repair in its factories, IPTE may decide to delegate a technician to intervene directly on the site of use of the Product. In this case the user is responsible for making available free of charge to IPTE, on site, the equipment and staff required for the proper unfolding of the operation.
13.5. The hotel and travelling costs of the technician delegated by IPTE to the user, within the scope of the warranty, shall be charged.
13.6. In the event of unjustified travelling and in particular in the case of the incorrect use of the Products or insufficient experience by the user, the intervention shall be invoiced in total to the Customer.
13.7. IPTE forwards the warranty and services conditions of third party goods as IPTE receives these conditions from this supplier.
13.8. Any warranty, shall apply only if:
13.8.1. the Products are used and maintained, under normal conditions and in accordance with the Documentation, information and advice furnished by IPTE;
13.8.2. the Customer can show proven record of such maintenance and preventive maintenance;
13.8.3. the Customer has given IPTE every opportunity to inspect and remedy reported defects, non-conformity or deviation.
13.9. The warranty does not cover consumable parts such as lamps, fuses, batteries, etc., nor the repair or replacement of parts, nor damage or liabilities, which might result in particular from the normal wear and tear of the Product, shortcomings in surveillance, in transport and/or in stocking not in conformity with IPTE’s specifications, any addition or modification made by the user or a third party.
13.10. The warranties given above constitute the only warranties made by IPTE with respect to the Products and are in lieu of all other warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
14. SERVICE AND SUPPORT
14.1. IPTE provides service and support for all Products delivered and installed by IPTE. IPTE expects from the customer to buy sufficient spare parts and training. IPTE expects from the customer to keep this spare part kit up to date and to maintain the level of trained service personnel. IPTE will treat service calls for trained customers with up to date spare part kits with higher priority. IPTE expects from the customer to perform the first line support. All interventions for support (even in the warranty period) will be charged to the customer.
14.2. IPTE offers service centers operational 24h/24h, 7 days a week. All service calls must be acknowledged in writing (e-mail) within the next working day of the Customer.
14.3. Training, assistance during Installation, Acceptance and ramp-up:
14.3.1. In case technical assistance and training is required or requested, IPTE shall provide this at its premises and/or at the premises of the Customer.
14.3.2. This training and assistance and any possible travelling expenses for IPTE’s technician shall be invoiced to the Customer. Unless agreed otherwise in writing, installation assistance shall be charged on a post calculation basis.
15. INTELLECTUAL PROPERTY RIGHTS / INFRINGEMENTS
15.1. Any and all Intellectual Property rights related to the Products or Services shall vest in IPTE or its suppliers.
15.2. IPTE shall indemnify and keep indemnified Customer against all actions or claims for infringement of Intellectual Property Rights by reason of the proper use of the Products in the Territory, and IPTE shall in the event that Products become the subject of actions or claims of infringement of Intellectual Property Rights, promptly, at its option and own expense, either:
15.2.1. procure for Customer the rights for continued use of the Products in its present form, or
15.2.2. replace or modify the Products so that it no longer infringes any such rights, or
15.2.3. settle or defend any further claim, suit or proceeding against Customer arising out of such continued use, or
15.2.4. if such remedies are not reasonably or economically feasible, IPTE may request to return the Products and refund to Customer the purchase price less a reasonable amount for depreciation as reflected on the books of Customer, provided always
184.108.40.206. that Customer without delay informs IPTE in writing of any claim made by reason of alleged infringement as aforesaid and refrains from acting on account of such claims without previous approval of IPTE;
220.127.116.11. that Customer without delay informs IPTE in writing if legal action is taken on account of such claim and that IPTE shall have full authority to defend or settle the same through its counsel;
18.104.22.168. that IPTE is informed of all circumstances which may be of relevance in the legal action taken and Customer refrains from all steps in any legal action which may prejudice IPTE;
22.214.171.124. that in case IPTE fails to act against such claims or actions Customer shall have the right to take appropriate legal action and shall be repaid any expenses in so doing; and
126.96.36.199. that the infringement or alleged infringement does not arise out of the use of the Products in combination or conjunction with any other item or the use thereof not supplied or manufactured by IPTE.
15.3. This Article 15 provides IPTE’s sole liability and Customer’s sole remedy for claims of infringements of Intellectual Property Rights brought by a third party by reason of the proper use of the Products.
16. GENERAL LIMITATION OF LIABILITY
16.1. Except as expressly provided in this Article 16 or elsewhere in the Contract IPTE shall in any event not be liable to the other Party under the Contract for loss of production, loss of use, loss of business, loss of data or revenue or for any special, indirect, incidental or consequential damages, whether or not the possibility of such damages could have been reasonably foreseen.
16.2. In all events, the liability and warranty and the consequential damages, including as the case may be penalties for late delivery, resulting from the shortcoming of the Products and Services and its follow-up may not exceed 5% of the value before VAT of Product and Services as expressed on the related Invoice.
16.3. No action, regardless of form, arising out of any alleged breach or obligations of the Contract may be brought by either Party more than two (2) years after the cause of action has occurred.
16.4. A Party suffering loss or damages shall take reasonable measures to limit such loss or damage.
17. MODIFICATION OF CONTRACT
17.1. No addition or modification of the Contract shall be effective or binding on IPTE unless agreed in writing and executed by a duly authorised representative of IPTE.
18.1. IPTE reserves the right to subcontract such portions of its undertakings under the Contract to subcontractors. IPTE shall be responsible to Customer for the performance by any such subcontractors as if performed by IPTE, unless Customer has requested IPTE to involve the subcontractor in question.
19. FORCE MAJEURE (RELIEFS)
19.1. Either Party shall be excused from the performance of any of its obligations under the Contract and such obligations shall be extended by a period reasonable under the circumstances if the performance thereof is prevented or delayed by industrial disputes or any cause beyond the affected Party’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, embargo or requisition (acts of government), including non-availability of an export licence for the Products or any part thereof or visa and permits for IPTE’s personnel, or delays in the performance of its subcontractors caused by any such circumstances as referred to in this Article 19.
19.2. The right of relief shall apply irrespective of whether the cause of prevention or delay occurs before or after the agreed due time for such obligations.
19.3. In case of force majeure, the affected Party shall promptly notify the other Party in writing and furnish all relevant information thereto.
19.4. Should a cause of force majeure continue for more than three (3) months, either Party shall then have the right to terminate the Contract.
20.1. For the purpose of this Article, Confidential Information is defined as information specifically designated as confidential at the time of disclosure or by nature obviously confidential or proprietary, such as trade secrets and designs.
20.2. Except as provided below in this Article 20, the receiving Party of confidential information agrees to treat the same as strictly confidential and shall not divulge, directly or indirectly, to any other person, firm, corporation, association or entity, for any purpose whatsoever, confidential information so received, and shall not make use of or copy such confidential information, except for the purpose of the Contract. Such confidential information may be disclosed only to such of the employees, consultants and subcontractors of the receiving Party who reasonably require access to such information for the purpose for which it was disclosed and who have secrecy obligations to the receiving Party. This commitment shall impose no obligation upon either Party with respect to any portion of such information that:
20.2.1. was known to the receiving Party prior to its receipt from the other Party;
20.2.2. is known or which (through no act of failure on the part of the receiving Party) becomes generally known;
20.2.3. is supplied to receiving Party by a third party which the receiving Party in good faith believes is free to make such disclosure and without restriction on disclosure;
20.2.4. is disclosed by the disclosing Party to a third party generally, without restriction on disclosure;
20.2.5. is independently developed by the receiving Party without use of any confidential information provided by the disclosing Party.
20.3. Customer and IPTE agree that each others trade secrets are proprietary and confidential. Customer agrees that the contents of the Quotation and the Contract are confidential.
20.4. Unless otherwise agreed, IPTE shall have the right to use Customer as a reference.
20.5. The obligation of confidentiality set out in this Article 20 shall survive the termination or expiration of the Contract for a period of five (5) years.
21. EXPORT REGULATIONS
21.1. Customer is informed that sale and delivery of (parts of) the Products in an export situation may be subject to export regulations, e.g. of the resident country of IPTE Product Center, the European Union and/or of the United States of America. Customer shall hold IPTE harmless of any and all claims, which relate to infringement by Customer of such regulations.
22.1. Either Party may terminate the Contract by notice in writing to the other Party on the occurrence of any of the following events:
22.1.1. if the other Party shall commit a material breach of the Contract and after receipt of a written notice specifying the breach or default shall fail to remedy the breach within a specified period of time set forth in the said notice, which period of time shall be reasonable taking into account all relevant circumstances;
22.1.2. if bankruptcy or insolvency proceedings are instituted against the other Party and such proceedings are not dismissed within thirty (30) days from the date of proceedings, or the other Party makes an assignment for the benefit of its creditors;
22.1.3. due to a force majeure event, in accordance with the provisions of Article 19, Force Majeure.
22.2. A termination of the Contract by the Customer for any reason, after the Contract Effective Date, not related to the nonfulfilment of the obligations by IPTE, will only be accepted by IPTE in case all the reasonable costs, which IPTE has made for this Contract, will be settled. In this case IPTE will be entitled to keep the amounts of Invoices already paid by the Customer and will be further reimbursed up to the level of its costs.
22.3. Provisions contained in the Contract or these General Sales Conditions that are expressed or by nature are intended to survive the expiration or termination of the Contract shall survive such expiration or termination.
23. ENTIRE CONTRACT
23.1. The Contract sets forth and shall constitute the entire agreement between Customer and IPTE with respect to the subject matter thereof, and shall supersede any and all prior agreements, understandings, promises and representations made by one Party to the other concerning the subject matter of the Contract.
24.1. Neither Party shall have the right to assign the Contract or any right herein without the prior written consent of the other Party. However, IPTE shall have the right to assign the Contract to other IPTE Group companies.
25. GOVERNING LAW
25.1. The Contract and all other rights and obligations between Customer and IPTE shall be governed by the national law of the performance responsible IPTE Product Center (see below).
25.2. The Contract, including these General Sales Conditions, is binding except in case of overruling compelling legislation.
25.3. If any clause of the agreement and T&C is or will become invalid, such clause shall not affect the validity of the remaining clauses. The invalid clause shall be replaced by a valid clause, which shall meet as closely as possible the legal and commercial purpose of the original one.
25.4. All disputes, differences or questions between the Parties with respect to any matter arising out of or relating to the Contract or other rights and obligations between Customer and IPTE which cannot be settled in an amicable manner, shall be settled by the competent court in the country of residence of the IPTE Product Center as mentioned below.
IPTE Product Center
IPTE Factory Automation n.v., Genk, Belgium
IPTE Germany GmbH, Heroldsberg, Germany
IPTE Industrial Automation (Shanghai) Co. Ltd, P.R. China
Prodel Automation S.A.S., Carlepont, France
Court of Paris
Prodel Technologies S.A., Carlepont, France
Court of Paris
IPTE Iberia - Automação Industrial Lda, Ovar, Portugal
IPTE Spain S.L.U., Reus, Spain
IPTE Automation Oü, Tallinn, Estonia
IPTE Platzgummer GmbH, Dachau, Germany
IPTE RO S.R.L., Oradea, Romania