General terms and conditions

1      SHAPE PROCESS AUTOMATION GENERAL TERMS AND CONDITIONS FOR SPARE PARTS AND SERVICES

1.1    TERMS AND CONDITIONS OF DELIVERY

Shape Process Automation EMEA AB (hereinafter referred to as “SPA”) The following documents apply in the order listed below and in its most current version:

1. Terms and Conditions as stipulated in the quotation
2. These general terms and conditions ("Terms and Conditions of Delivery") apply to all quotations, acknowledgements, and/or invoices submitted by SPA for sale or lease of systems and parts ("Systems"), and services rendered in conjunction with systems and parts ("Services"). Consequently, a valid acceptance of any and all offers by SPA regardless of form is expressly conditioned upon the customer's assent to the application of these Terms and Conditions to the resulting contract.

Any purchase order or other ordering document that contains deviations from these Terms and Conditions is a counteroffer, rejected by SPA, and which may result in a delay in SPA's standard delivery timeframe. As used herein, "Contract" means these Terms and Conditions together with a valid order confirmation.

1.1.1    QUOTATION VALIDITY PERIOD

Thirty (30) work days after the date of the quotation unless otherwise specified.

1.1.2    THE TOTAL PRICE DOES NOT INCLUDE (UNLESS OTHERWISE SPECIFIED IN THIS QUOTATION):

1. Specific requirements at your plant.
2. Safety requirements exceeding the EC machinery directive.
3. High pressure parts such as pipes, fittings, etc. from the high-pressure pump to the machine.
4. Water processing and conditioning and waste and drain water disposal.
5. Connections to the feed lines such as power, compressed air, cooling water and other utility supplies.
6. Assembly of high pressure tubing and attachment of brackets to the high pressure tubing at the plant.

1.1.3    DELIVERY PERIOD (LEAD TIME)

The lead time is stipulated in the quotation/order confirmation Any changes made to the order by the customer may result in a change of the contractually agreed delivery date.

In addition, SPA reserves the right to postpone the delivery date, in the time period between the order date and the delivery date, due to any delay due to the fault of the customer.

1.1.4    TERMS OF DELIVERY AND PASSING OF THE RISK

The prices are from SPA production plant, EXW Karlshamn/Sweden in accordance with INCOTERMS 2010 (if not otherwise stated in the quotation/order confirmation) and are exclusive of any applicable value added tax V.A.T., other taxes, costs or other fees due.

The risk of loss or damage to the system shall pass to the customer in accordance with the agreed trade term, which shall be construed in accordance with the INCOTERMS in force at the date of formation of the contract.

SPA reserves the right to revise the prices if additional costs are incurred as a result of circumstances which were not known or raised prior to the date that the quotation was issued. Examples include introduction of additional regulations, governmental guidelines or changes to the scope of work.

If the customer anticipates that it will not be able to accept delivery and/or deliverables or fulfill any of its obligations as they become due, the customer shall immediately inform SPA thereof. The customer is obligated to state the reason it potentially cannot accept delivery/deliverables or otherwise fulfill its obligations and state the time when it will be able to do so.

The customer shall nevertheless pay any part of the price which becomes due in accordance with the payment schedule in the offer as if delivery had taken place or customer had fulfilled its obligation.

SPA will arrange for storage at the risk and cost of the customer. If the storage is performed through a third party, the customer hereby commits to enter into necessary agreements and take any actions necessary.

SPA is entitled to invoice any and all cost in connection with customers delay to accept delivery/deliverables or customers delay in performing its obligations separately.

1.1.5    RETENTION OF TITLE

SPA reserve title to the delivered items until receipt of all payments due in connection with or arising out of the business relationship. Any nonfulfillment of the customer’s obligations, especially default in payment, shall entitle SPA to repossess any delivered item(s). This repossession by SPA equals a withdrawal from the contract. SPA is entitled after the recovery to have the items evaluated and the value assigned to the items shall at the sole discretion of SPA be deducted from any liabilities of the customer, less reasonable evaluation costs.

The customer is obliged to treat the deliverables with care; in particular, the customer is obligated to insure the deliverables, at customer expense, against fire, water and theft. If maintenance and inspection work is required, the customer is obligated to carry this out at customer’s expense.

If third parties seize or otherwise takes control of the deliverables, the customer must immediately inform SPA in writing so that SPA can raise a complaint. If the third party is unable to reimburse SPA for the judicial and extrajudicial costs of any complaint, then the customer remains liable for any resulting loss.

1.1.6    ADDITIONAL WORK

Set-up, operation, installation, programming and customer training provided but not included in this Quotation will be billed in accordance with the applicable rates.

Services over workdays will be provided within the regular working hours (8.00-17.00 h CET). Waiting time, which is not due to SPA as well as overtime, night work, weekend work and work on bank holidays will be charged according to additional expenditure at SPA present rates for overtime work.

1.1.7    WARRANTY 

The warranty is (i) 6 months following operational hand over of the offered product, service or rebuild of System or (ii) 2000 operating hours, whichever occurs first (if not otherwise stated in the quotation) (only for non-high pressure waterjet articles).

SPA is not responsible for any defects due to lack of maintenance, improper use, operation not in accordance with the manual, or faulty repair or changes made without SPA written approval. Any notices of a defect must be provided with one year after the date of the purchase at the latest.

Throughout the warranty term only original spare parts and specified wear parts shall be used. The warranty does not cover normal wear parts and does not extend to normal wear and tear and dilapidation.

Warranty claims are conditional upon the customer fulfilling its obligation to inspect and notify SPA of any defects. The customer shall at the time of the transfer of risk or acceptance immediately inspect the spare parts and without delay notify SPA in writing of any defects found. Hidden defects shall be notified to SPA immediately upon discovery and under no circumstance be given later than two weeks after the discovery.

SPA shall remedy defects or non-conformity which effects the function (hereinafter termed defect(s)) resulting from faulty design, materials or workmanship. The liability of SPA is limited to repair or replacement of the defect (at SPA option).

Where the defect has not been successfully remedied the customer is entitled to a reduction of the price in proportion to the reduced value, provided that under no circumstance shall such reduction exceed 15 percent of the price, or where the defect is so substantial as to significantly deprive the customer of the benefit of the contract, customer may terminate the contract by notice in writing to SPA. The compensation for the loss is limited to a maximum of 15 percent of the price.

Warranty as provided herein is only available to the original customer and are not assignable or transferrable.

1.1.8    PAYMENT TERMS

Upon submitting an invoice according to applicable Value Added Tax provisions, the following payment terms apply to the agreed Price (plus statutory Value Added Tax):

• 100% of the purchase price after receipt of your purchase order unless otherwise stated in the quotation/order confirmation

Payment: Immediately after receipt of the invoice, net.

1.1.9    LIABILITY FOR DAMAGES AND LIMITATION OF LIABILITY

1. The liability of SPA for damages, regardless of the legal grounds, in particular due to impossibility to perform, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, and unpermitted actions is in matters of fault, shall be limited in accordance with this paragraph. There shall be no liability for SPA for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect loss whatsoever.
2. SPA shall not be liable in cases of negligence of its directors, officers, legal representatives, employees or other agents unless it constitutes a breach of an essential contractual obligation. An essential contractual obligation is such an obligation on which the client can trust and rely on. Essential contractual obligations e.g. the obligation to make timely delivery and installation free of essential defects, including advisory, and duties which enable the customer the contractual use of the delivered items or is intended to protect the lives and health of the customer's personnel.
3. In case of liability for negligence, the liability of SPA is limited to maximum 100% of total amounts received by SPA under the contract, even if it is a breach of an essential contractual obligation.
4. Exclusions and limitations apply to the same extent in favour of the organs, legal representatives, employees and other agents of SPA.
5. The aforesaid limitations of liability do not apply in the event of intentional breach of duty by SPA and to claims of damaged parties against the producer under mandatory product liability law provisions. If both SPA and the customer are liable as producers to third parties for one and the same product damage, their internal liability including mutual rights of indemnification and recourse are governed by the statutory provisions. However, the contractual allocations of liability, in particular under this agreement, must be considered in favour of both parties in addition, i.e. SPA is internally liable at the most if and to the extent that SPA is also contractually responsible for the defect and only up to a maximum amount equal to the (net) purchase price received for the defective product. Moreover, the parties are only liable also to each other within the framework of the amounts covered under their relevant product liability insurance the conditions of which must be proved in detail upon request of the respective other party.
6. SPA shall not be liable for any damage to property caused by the deliverables after completion and whilst in the possession of the customer. Nor shall SPA be liable for any damage to products manufactured by the customer, or to products of which the customer's products form a part. If SPA incur liability towards any third party for such damage to property as described in the preceding paragraph, the customer shall indemnify, defend and hold SPA harmless. If a claim for damage as described in this clause is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof in writing.

1.1.10 EXPORT CONTROL

Products or Software delivered under this Agreement may be subject to import and export regulations of the European Union, the United States and or other countries.

End-User-Certificate (EUC)

When placing the order, at the latest, the customer must send an end-use (End-Use Certificate) on the civilian end-use of the SPA system or part of the system (SPA can supply a template of this declaration upon request). SPA reserve the right to conduct our internal export control examination in order to determine whether the contract can be performed. In relation to SPA, a granted export license constitutes a precondition for delivery. Embargo measures are to be regarded as "Force Majeure"

Customer will comply with applicable import and export laws and regulations and will obtain and maintain any export and import license required for the delivery under this Agreement. Without limiting the foregoing, and as an example, customer or anyone on behalf of customer will not export or re-export products to destinations identified pursuant to articles in chapter II of European Council Regulation (EC) 428/2009 and specifically, and without limitation, distributor will also comply with U.S. Government Export Administration Regulations ("EAR", 15 C.F.R. §§730-774" http://www.bis.doc.gov/ ) administered by Department of Commerce, Bureau of Industry and Security and economic sanctions regulations (30C.F.R. §§500 et. seq., " http://www.treas.gov/offices/enforcement/ofac/) administered by the U.S. Department of Treasury, Office of Foreign Assets Control. 

1.1.11 COPYRIGHTS; SOFTWARE AND ENGINEERING LICENSES, USAGE AGREEMENT

Regarding Software (standard software, firmware), expertise and developments the following applies:

SPA grants a non-exclusive and non-transferable, non-sublicense able right for the customer to use delivered software and documentation. For security purposes, a backup version may be created. The intellectual property and all protection and exploitation rights remain vested with SPA. The source code is not part of the delivery and service scope.

The customer receives a non-exclusive, non-sublicense able and non-transferable right to use all the development and result that has come into existence as a result of the applicable system or part of the system at the location. Notwithstanding anything to the contrary all rights (inventions, copyrights, intellectual property rights) remain vested in SPA.

The software and developments may not, without prior written approval by SPA: (i) be utilized in contradiction to the intended purpose as expressed in the quotation, (ii) be reproduced and or disclosed to third parties, or (iii) be used by any third party, (iv) be decompiled or reverse engineered. Infringements entitle SPA to claim damages and other applicable remedies.

The agreed liability for defects in the software does not apply if the delivered original software is modified without the express written permission from SPA. For special software, a separate license agreement must be concluded in individual cases if appropriate.

1.1.12 CHANGES

Side agreements and customer changes shall only be effective if SPA confirms their effectiveness in writing. Resulting costs incurred will be invoiced separately.

1.1.13 CONFIDENTIALITY

Any SPA quotation/order confirmation is confidential and only intended for your internal use. We ask you kindly for your understanding. Without permission of SPA quotations/order confirmations may neither be copied nor be made accessible for third parties. Copyrights and trademarks incorporated in this quotation are provided solely for the purpose of the quotation.

The data and information -General product information, documentation and price lists- contained in electronic form or otherwise are only binding to the extent explicitly referenced as included in the quotation as binding.

1.1.14 FORCE MAJEURE

Either party is relieved from liability for a failure to perform any of its obligations due to any circumstances beyond its immediate control, which impedes, delays or aggravates any obligation to be fulfilled, such as changes in laws and regulations or in the interpretation thereof, acts of authorities, war, acts of war, labour disputes, blockades, major accidents and currency restrictions. The party desiring to invoke an event of force majeure shall give immediate notice to the other party of the commencement and the cessation on such event of force majeure, failing which the party shall not be discharged from liability for any non-performance caused by such event of force majeure.

1.1.15 SEVERABILITY, ENTIRE AGREEMENT AND WAIVER

If any provision of this quotation or part thereof shall to any extent be or become invalid or unenforceable, the parties shall agree upon any necessary and reasonable adjustment in order to secure the vital interests of the parties and the main objectives prevailing at the time of execution of the quotation. The quotation and its appendices constitute the entire agreement between the parties on all matters to which it relates. Any particular matter that has not been expressly covered shall be resolved in accordance with the principles on which the quotation is founded. SPA rights and remedies under the quotation are cumulative and without prejudice and in addition to any right or remedies which SPA may have at law or in equity.  No failure or delay by SPA to exercise any of its rights in respect of any default under the quotation by the customer will prejudice SPA rights in connection with the same or any subsequent or other default.

1.1.16 GOVERNING LAW AND DISPUTE RESOLUTION

This quotation shall be construed in accordance with and be governed by the laws of Sweden (excluding conflict of law rules). The UN convention on international sale of goods (CISG) shall not apply.

Any dispute, controversy or claim arising out of or in connection with this quotation or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce for expedited arbitration procedure. This arbitration clause will survive the termination of this quotation and will not limit SPA right to apply to a court of competent jurisdiction for injunctive or other relief in case of a breach or threatening breach of sections “Export Control”, “Copyright” or “Confidentiality” nor will it limit SPA right to institute proceedings before a court of competent jurisdiction for amounts owed to it for Systems or otherwise.

The arbitration proceeding shall be conducted in the English language and take place in Stockholm.

1.1.17 ADDITIONAL TERMS

When the contract includes installation services, the General Conditions SI 14 (Orgalime SI 14) for the Supply and Installation of Mechanical, Electrical and Electronic Products apply. The Supplementary Conditions SW 14 apply to Computer Software included in product delivered under Orgalime SI 14. For other deliveries, the General Conditions S 2022 (Orgalime S 2022) for the Supply of Mechanical, Electrical and Electronic Products apply. Please contact service.eu@shapetechnologies.com to obtain applicable copy of the Additional Terms. 

Conflict Among Terms. In the event of a conflict or any ambiguities between these terms and conditions and any terms and conditions contained in a quotation, order acknowledgement, or other SPA-issued documents, the following order of priority shall apply: (i) terms on the order acknowledgment (if any), (ii) terms on the quotation, (iii) these terms and conditions, (iv) applicable Orgalime conditions.