Global terms and conditions for sale of products and provision
of services (GTC)
ComAp provides smart electronic control products and solutions to our customers globally. These GTC will assist our global business partners to connect to ComAp, and to protect our customers’ requirements in a simple global manner. ComAp also ensures in these GTC that the legal and business local needs of our global business partners are considered.
These GTC constitute a legally binding agreement between ComAp and the Customer for sale of Products and Services.
Figure 1: ComAp Group
The rights and obligations of the Contracting Parties are governed by these GTC even if the Customer's order states otherwise. Any terms other than these GTC or Agreement shall be disregarded in compliance with these GTC. ComAp presumes that the Customer is familiar with these GTC, understands them and has expressed his consent with them. ComAp is entitled to modify these GTC at any time. A modification of these GTC will be announced by ComAp at least 30 working days before its effectiveness. Such an announcement will be undertaken via the ComAp website and/or by another suitable way. If the Customer would not agree with the proposed modification of these GTC, the version valid at the time of Agreement was executed, will remain effective. If the Customer agrees with the modification of these GTC or, in the 30-day time-period from the announcement will not express his will, it means that the Customer agrees with the proposed modification and such modification becomes binding for the Customer.
The Customer is not entitled to propose any amendment, or variation from the existing or proposed wording of these GTC. ComAp precludes any changes, amendments or variations from these GTC proposed by the Customer unless approved in writing by ComAp.
Corrections of grammatical or factual inaccuracies in typing, calculations or identifications of authorities, work positions, product names, ComAp's documentation, correction or completion of other parts of these GTC, which do not impair the position of the Customer are not considered a modification of these GTC.
In case of conflict among the Agreement, GTC, License Agreement, Australia SC and USA SC, the documents shall prevail in this order: 1. Agreement, 2. Australia SC and USA SC, as applicable, to the extent of the inconsistency with these GTC 3. GTC, 4. License Agreement, and 5. INCOTERMS (2010). For the avoidance of any doubt, unless agreed otherwise in the Specific Agreement, the INCOTERMS (2010) rule determined in the Agreement shall not cause prevalence of INCOTERMS (2010) over the preceding documents listed in the previous sentence.
The valid and effective version of these GTC is available at www.ComAp-control.com
Agreement - means a bilateral legal relationship concluded between ComAp and the Customer which is expressed in Order Confirmation and/or Specific Agreement and set of all related documentation of each ComAp´s business cases connected to the sale and purchase of Products and/or the provision of Services including these GTC; a written form of Agreement (paper or electronic) is required;
Australia SC – means Australia special conditions for Products or Services supplied within the territory of Australia;
ComAp – means ComAp a.s., U Uranie 1612/14a, 170 00 Prague, its subsidiaries and sales affiliates belonging to the ComAp Group;
Contracting Parties - means ComAp and the Customer;
Customer – means any person or company to whom ComAp sales Products or provides Services;
Distributor - means a person or a company cooperating with ComAp and selling ComAp’s Products and/or Services in accordance with a distribution agreement;
Documentation - means all licenses and consents, which the Customer shall obtain on its own responsibility and at its own expense, if necessary, before the performance of ComAp is initiated, or at any time during the performance and ComAp shall be entitled at any time to require the Customer to submit Documentation. ComAp or ComAp contractual carrier may also require the submission of all documents defined in the Agreement and require their submission as a condition precedent for the commencement of delivery;
Guides - means an integral part of Products which is available to each authorized Customer on the web www.ComAp-control.com
The Guides contain important instructions for Product’s operational status, configuration, testing and servicing. Some new features for Products may be available at the same web address as released and published by ComAp from time to time;
Incoterms 2010 - means the international rules for the interpretation of trade terms prepared by the International Chamber of Commerce;
Intellectual Property Rights - means Trademarks, geographical indications, industrial design, patents, layout-design (topographies) of integrated circuits, which means particularly registered designs, applications for any of these rights, copyright, design right, know-how, confidential information, trade and business names, database rights, underlying algorithms, Guides and any other intellectual property rights and similar rights in any country;
License Agreement – means the written terms and conditions of use of ComAp control system software and documentation created, issued and published by ComAp related to the protection of the Intellectual Property Rights and other intangible property rights of ComAp called “COMAP LICENSE AGREEMENT”. License Agreement is an integral part of these GTC;
Order Confirmation - means ComAp’s written acknowledgement and acceptance of the Customer’s order to purchase Products and/or Services;
Price - means the sums to be paid by the Customer to ComAp for the purchase of Products and/or provision of Services as set out in the Agreement;
Products/Goods - means i) products that ComAp agrees to supply to the Customer under the Agreement, and/or ii) subject to the License Agreement;
Registered Product(s) - means Products equipped with the ComAp control system software and the Technical Documents after the authentication check and/or registration procedure described in the License Agreement;
Specific Agreement - means every written agreement that includes provision/s different to these GTC; other than Order Confirmation;
Specification - means ComAp’s specific documentation relating to Products and specific documentation relating to Services as defined in the document ComAp Service Definition;
Technical Documents - means a set of documents necessary for the operation, maintenance and repair of Products in a written or electronic form, including but not limited to Guides, and Specification;
Trademark(s) - means any sign, or any combination of signs in particular words including personal or trade names in any form, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs including graphical depiction (logo) used by ComAp for its Products and the business name ComAp;
USA SC – means USA special conditions for Products or Services supplied within the territory of USA.
2. Conclusion of agreement
Before sending an order to ComAp, ComAp and the Customer will agree on the essential terms of the order, i.e. Price, payment method, identification of Products and/or Services, quantity, estimated delivery date and INCOTERMS (2010) rule. Any other requirements may be agreed by Contracting Parties in accordance with these GTC. If the provisions that vary from these GTC are subject of negotiation, these derogations may be reflected in the Order Confirmation or in the Specific Agreement. These GTC are a mandatory part of all Agreements.
After the essential terms of the order are preliminary agreed by the Contracting Parties, ComAp will send the quote to the Customer. The quote is valid for 30 days from its issuance, if the quote does not state another time-period. The Customer sends a written order to ComAp within the stated time-period. The order may be accepted by ComAp if the Customer confirms the quote by sending the written order to ComAp. The Customer’s order with deviation(s) in essential terms shall be considered as a new order of the Customer and further action (acceptance or rejection) of ComAp is required.
The Customer may send the order to ComAp without a previous quote provided by ComAp only in case, this process has been previously agreed to by ComAp. The Customer agrees that sale of Products and/or provision of Services will be governed by these GTC. The Customer’s order shall include all essential terms of the order.
The order is accepted if ComAp sends Order Confirmation to the Customer, otherwise it is considered that the Customer’s order was rejected. ComAp will initiate performance after it sent Order Confirmation to the Customer. The text of Order Confirmation shall deviate from these GTC, only to the extent permitted by these GTC.
3. Dispatch and delivery
3.1. ComAp shall use its reasonable efforts to deliver Products. The delivery shall start in accordance with the Agreement but not sooner than the Agreement was confirmed or signed.
3.2. The Customer will collect Products in the place agreed in the Agreement. Place to collect Products by the Customer, shipping method, and selected contractual carrier will be agreed in the Agreement.
3.3. ComAp or ComAp's contractual carrier may condition the initiation of the transport by the delivery of Documentation that the Customer is obliged to submit. Failure to provide Documentation entitles ComAp to postpone the delivery of Products until Documentation is submitted. ComAp may obtain Documentation instead of the Customer at the Customer's expense, or may withdraw from the Agreement. Upon withdrawal from the Agreement, ComAp is entitled to reimbursement of all costs related to non-delivery of Products, i.e. payment of Products Price including all costs incurred for shipment of Products, whether the shipment has been initiated or not. Any damages resulting therefrom will be born in full by the Customer. Should Products be delivered outside the EU, the Customer shall deliver an export confirmation for non-EU countries to ComAp.
3.4. The Customer may request a change of the place and/or time of delivery of Products after the shipment was initiated. ComAp shall accept the change provided that i) the contractual carrier approves the change of place and/or time of delivery, ii) such a change will be possible, based on the selected mode of transport. The Customer shall pay all other costs related to the change of the place and/or time of delivery of Products.
3.5. Products can also be delivered at the expense of the Customer via their contractual carrier. In this case, for the purposes of these GTC, dispatch reference date shall be the collection of Products by the Customer's contractual carrier or by the Customer directly. The Customer's obligation to provide all necessary Documentation is retained.
3.6. Products may be delivered in partial shipments, unless the Agreement explicitly states otherwise. Should the delivery of any Products be cancelled, this will not affect the delivery of the remaining shipments of Products, unless agreed otherwise.
3.7. The Customer shall immediately notify ComAp if Products i) are not delivered to the place of delivery and/or on time, ii) are delivered in a different quantity, or iii) do not correspond to the type of Products stated in the Agreement. In such cases ComAp will replace the Products, unless the Agreement defines that the replacement of Products is precluded or is not possible for another reason.
3.8. If the packaging of Products appears to be visibly damaged at the time of delivery, the Customer shall inspect Products in the presence of a ComAp' contractual carrier or other person authorized by ComAp. Should Products be visibly damaged i) the Customer shall describe the damage in writing in the corresponding handover document of the contractual carrier, in writings, ii) immediately inform ComAp about the damage in writing, iii) provide ComAp with sufficiently documented evidence (including photographic evidence) and iv) immediately inform ComAp whether or not the Customer had taken over the damaged Products. If the information and evidence mentioned above is not sent to ComAp immediately, a warranty claim may be rejected and ComAp shall not be liable for any damage related thereto. The same procedure is applicable for the transfer of Products by the Customer’s contractual carrier.
3.9. The Customer exporting Products by himself or by his contractual carrier is obliged to declare Products. When Products are exported outside the EU, the Customer shall prove evidence that all respective custom proceedings have been undertaken. From the time when Products leave ComAp, the Customer shall submit the Written Custom Declaration in electronic format .xml (WCD) within 10 days. If the issuance of WCD requires a longer time-period, ComAp may grant reasonable extension in writing, however the overall time-period shall not exceed 60 days from the date when Products are exported from ComAp. If the Customer fails to submit the WCD within the above mentioned time-period, the Customer shall pay a fee in the amount of 25% of the Price. The Customer is obliged to pay all cost incurred in connection with the relevant tax and customs proceeding exceeding the fee defined in the previous sentence.
4.1. ComAp provides Services to its Products, that consist mainly of product support, additional services, project & complete solutions and customer training. All these types of Services are described in the document ComAp Service Definition. Services also include warranty and post-warranty repairs.
4.2. Shall the Customer require Services, such Services shall be indicated in the Agreement, and the Customer will provide ComAp with all necessary information related to provision of Services, i.e. identification of Products, document/s proving legal acquisition of Products and the place where Products are located and/or Services should be provided.
4.3. The type of Services offered are i) Services provided together with Products and included in the Price of Products - product support as defined in Specification, and ii) other Services provided on the request of the Customer. The Price will be determined individually or based on the Price provided by ComAp. The minimum rate is € 1,200.00 per man-day, unless the Agreement provides otherwise.
4.4. The scope of other Services, their Price, place of performance and the dates of their provision must be included in the Agreement, otherwise the provision of Services may be rejected by ComAp.
5. Price and payment conditions
5.1. Price for Products and/or Services is defined in the Agreement. If applicable, other costs may be added to the Price. Other costs include: i) value added tax, ii) costs related to the delivery of Products (including customs fees), if the delivery is provided by the ComAp's contractual carrier, iii) costs related to the provision of Services, iv) or other costs related to requirements imposed by relevant authorities.
5.2. Any costs incurred by the Customer not required, caused or under the control of ComAp, shall be borne by the Customer.
5.3. If there are any additional requirements after the final Price was agreed, these requirements including their impact on the Price have to be agreed by both Contracting Parties.
5.4. Any increase in tax rates impacting the Price of Products and/or Services, if applicable, shall not require additional consent of Contracting Parties.
5.5. Price for Products and/or Services shall be invoiced by ComAp and paid by the Customer via bank transfer before their delivery/provision pursuant to the invoiced date of payment, alternatively, based on terms defined in the Agreement. All details regarding Price will be defined in the Agreement. Any other costs connected to the selected type of payment (including all fees) shall be born by the Customer.
5.6. Unless the Agreement provides otherwise, the Customer shall pay to ComAp the total amount of each invoice (including electronic invoice issued in standard electronic form) within 14 days from the issuance of the invoice or on such due date as may be stated in the invoice. Further details of invoicing may be specified in the Agreement.
5.7. ComAp accepts the following currencies: USD, EUR, CHF, GBP, AUD, SGD, CZK, and other convertible currencies approved by ComAp. The currency will be specified in the Agreement.
5.8. ComAp reserves the right to use the following currency clause in the Agreement:
For the purposes of this exchange rate clause, the base currency to the chosen currency in the Agreement is EURO. The date of the valid exchange rate is the date when the Agreement was concluded based on the central exchange rate valid in the state of the Customer's registered seat. If after the conclusion of the Agreement either currency changes, the Customer shall pay the Price ensuring that the currency in the Agreement is deemed to have retained the same exchange rate value to EURO as of the date of the conclusion of the Agreement.
5.9. € 40.00 is the minimum amount to be invoiced by ComAp even if the Price of Products and/or Services is lower.
5.10. The Customer may not retain any payment of ComAp invoices, for whatever reason.
5.11. The Customer shall not set off any due or undue receivables against ComAp's and assign receivables against ComAp to any third party without the prior written consent of ComAp.
5.12. Payment is considered executed if it is credited to the ComAp's account.
5.13. ComAp does not accept advance payments, unless otherwise stated in the Agreement.
5.14. If the payment of the Customer becomes overdue or if there is any doubt that the payment would not be paid on time, ComAp has the right to suspend the delivery of Products or provision of Services to the moment the payment has been executed and/or the doubt has ceased to exist.
5.15. ComAp is entitled to provide the Customer with a credit limit. The amount and conditions are set individually. If the conditions for a credit limit are fulfilled, the Customer is entitled to repeatedly acquire Products and Services up to the amount of the credit limit provided. If the credit limit is exceeded, ComAp is entitled to suspend the delivery of Products and/or provision of Services and to require immediate payment of the amount exceeding the credit limit.
5.16. If the Customer is in delay with the payment of Price for Products and/or Services, the Customer shall pay an amount of 3M PRIBOR + 10% p.a. from the overdue amount. Paying this charge does not exempt the Customer to pay the Price for Products and/or Services.
5.17. ComAp may require from the Customer to pay liquidated damages in the amount of 50% from the Price but not less than € 10.000,00 for each individual breach of these GTC and/or the Agreement, including but not limited to:
5.17.1. breach of Intellectual Property Rights;
5.17.2. breach of the prohibition to resale Products by the Customer (other than the Distributor);
5.17.3. damage to the reputation of ComAp;
5.17.4. breach of export/import rules in international trade;
5.17.5. breach of export/import rules by delivery to locations and/or to the person that are subjects to international sanctions;
5.17.6. breaches of environmental rules (e.g. failure to destruct Products ecologically);
5.17.7. failure to ensure the authorization to export outside the EU;
5.18. ComAp may require from the Customer to pay the liquidated damages in the amount of 10% from the Price but not less than € 1.000,00 for each individual breach of these GTC and/or the Agreement, including but not limited to:
5.18.1. failure to provide the required documents for the purposes of Delivery or Dispatch of the Products;
5.18.2. failure to inform ComAp about the damage of Products upon their delivery;
5.18.3. breach of any obligation by the Customer related to Products before the ownership title is transferred to the Customer.
5.19. The Customer acknowledges and agrees that there can be no adequate remedy under the law for any breach of its obligations defined by these GTC. Any such breach may cause irreparable harm to ComAp, and therefore, upon any such breach or any threat thereof, ComAp shall be entitled to an appropriate equitable relief in addition to whatever remedies it might have under the law, including injunctive relief.
5.20. Derogations from this article per regions:
a) GST has the meaning it does in section 195-1 of the GST Act;
b) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related or similar legislation;
c) Supply has the same meaning it does in section 9-10 of the GST Act and excludes any “GST-free supplies” and “input taxed supplies” as those terms are defined in section 195-1 of the GST Act; and
Gross Up for GST:
d) Unless otherwise stated, the consideration payable by the Customer to ComAp for, or in connection with, a Supply under the Agreement does not include any GST.
e) The Customer must pay to ComAp an additional amount on account of GST equal to the amount payable by ComAp for the relevant Supply or Supplies multiplied by the prevailing GST rate.
f) The Customer is required to pay the additional amount to ComAp within seven (7) days of any request from the ComAp.
g) If a payment is to be made by the Customer to ComAp under this clause, then ComAp will provide the Customer with a tax invoice which complies with the requirements of the GST Act.
5.4. Products and Services may be paid by check drawn on a U.S. bank in U.S. funds.
6. Risk and title
6.1. The risk of damage on Products shall pass to the Customer at the moment Products are made available to the Customer in accordance with the Agreement (even in the case of abandonment) or at the moment of delivery (hand over) to the Customer. Products may be delivered to the Customer either directly by ComAp or by any of ComAp´s entitles, the Distributor authorized by ComAp or by ComAp´s contractual carrier.
6.2. The ownership of Products transfers to the Customer at the moment, when the total Price of Products including all additional payments arising from the Agreement are credited on ComAp’s account, unless otherwise agreed in the Agreement.
6.3. If Products have been made available to the Customer and/or Products are delivered, but there is no acquisition of the ownership title, the Customer is obliged to:
6.3.1. hold Products on a fiduciary basis as bailee or trustee or as may be otherwise agreed on behalf of ComAp;
6.3.2. store Products (at no cost to ComAp) separately from its other merchandise and possessions or the merchandise or possessions of third parties, in such a way that they remain readily identifiable as ComAp’s property;
6.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to Products; and
6.3.4. maintain Products in a satisfactory condition in accordance with any storage conditions advised by ComAp and keep them insured on ComAp’s behalf for their full Price against all risks to the reasonable satisfaction of ComAp. On request the Customer shall produce the insurance policy to ComAp.
6.4. ComAp's rights under this article 6 shall be retained even after the effectiveness of the Agreement has expired.
6.5. If the Customer desires to dispose of Products, or to provide Products for use to any third party, a prior written consent of ComAp is required. The Customer is obliged to inform the third party about the rights and obligations arising from these GTC, Agreement, License Agreement and Documentation and to provide GTC, Agreement, License Agreement and Documentation to the third party together with Products.
6.6. If the Customer collects Products with reservation, ComAp is obliged to evaluate such a reservation. If the reservation is justified by ComAp, ComAp is obliged to provide an adequate remedy.
6.7. Derogations from this article per regions:
PPSA AND SECURITY
6.8. Property in and legal and beneficial ownership of Products shall remain with ComAp until the Customer has made payment in full in cleared funds of the Price of those Products and any other money owing by the Customer to ComAp.
6.9. The Customer acknowledges and agrees that by assenting to the Agreement, which constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth): a) the Customer grants a security interest to ComAp in all Products now or in the future supplied by ComAp to the Customer (or to its account) during the continuance of the relationship between ComAp and the Customer, and the proceeds of those Products; a) any purchase it makes on credit terms or on a retention of title basis pursuant to the Agreement, will constitute a purchase money security interest (PMSI) for the purposes of the PPSA, and the PMSI will continue to apply to any Goods coming into existence, and the proceeds of the sale of Goods coming into existence, on or after the date of the Agreement; b) until title in Products passes to the Customer, it will keep all Products supplied by ComAp free, and will ensure all such Products are kept free, of any charge, lien or security interest and not otherwise deal with Products in a way that will or may prejudice any rights of ComAp under the Agreement or the PPSA; and c) in addition to any other rights under the Agreement or otherwise arising, ComAp may exercise any and all remedies afforded to is as a secured party under the PPSA, including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for, seize, dispose of or retain those Products in respect to which the Customer has granted a security interest to ComAp.
6.10. The Customer will, whether before or after Products are supplied under this Agreement, do such acts and provide such information (which information the Customer warrants to be complete, accurate and up to date in all respects) as in the opinion of ComAp (acting in its absolute discretion) may be required or desirable to enable ComAp to perfect under the PPSA the security interest created by this Agreement.
6.11. To the extent permitted by law the Customer waives any right to receive a copy of a verification statement under section 157 (or otherwise) of the PPSA and agrees as to any contract between ComAp and the Customer for the supply of Products governed by this Agreement, to the extent permitted by law, to contract out of each and every provision permitted by section 115(1) of the PPSA, except section 115(1)(g), to the intent that ComAp will preserve its right to seize collateral, and the Customer agrees to waive its rights referred to in section 115(1).
6.12. The Customer undertakes to: a) not register or permit to be registered a Financing Change Statement (as defined under the PPSA) in any of the Goods in which ComAp has a security interest pursuant to this Agreement; and b) provide ComAp not less than 7 days’ prior written notice of any proposed change in the Customer’s name, address, contact numbers, business practice or such other change in the Customer’s details which are registered on the Personal Property Securities Register, to enable ComAp to register a Financing Change Statement (as defined by the PPSA), if ComAp deems it necessary (in its sole discretion).
6.13. The Customer agrees to pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by ComAp to comply with the PPSA or to protect its position under the PPSA. The Customer agrees to pay any costs incurred by ComAp, including, but not limited to, legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any Goods supplied by ComAp.
7. Proprietary rights and action against third parties
7.1. The Intellectual Property Rights of whatever nature, and wherever in the world to the Product(s) are, and shall remain ComAp’s property as defined and pursuant to the terms and conditions of the License Agreement. The Customer may use the rights if i) the Price of the License is paid in accordance with the Agreement and the License Agreement or ii) the Price of the License is considered as a part of Products or iii) the License is provided free of charge.
7.2. Any reputation in Trademarks affixed to or applied to Products shall be for the sole benefit of ComAp or any other trademark owner.
7.3. Products may be equipped with the ComAp control system software. In this case Products must be registered according to the procedure described in the License Agreement. The Customer shall not remove any copyright notices, confidential or proprietary details, or identification from Product(s).
7.4. The Customer shall notify ComAp immediately if it becomes aware of any illegal or unauthorized use of the whole or any part of Products or the Intellectual Property Rights in them, including any infringement of Trademarks or suspicion of the occurrence of counterfeit products, and will assist ComAp in taking all steps necessary to defend its rights to them at ComAp’s expense. ComAp shall have the exclusive right to take steps to defend its rights and the Customer shall use best efforts assisting ComAp as requested by ComAp.
7.5. The Customer acknowledges that the software and/or Documentation and/or any other Intellectual Property are not bespoke materials and have not been prepared to meet the Customer's individual requirements. The Customer acknowledges that they are acquainted with the Guides and Specifications of Products.
7.6. The Customer acknowledges that only the software installed on the Registered Product and its Documentation is intended and applicable for use for the control and monitoring of ComAp control systems together with the ComAp's Products and for no other purpose.
7.7. The Customer acknowledges that the software and Documentation shall be used only by the person who is suitably qualified and who has been properly trained and competent in their use.
8.1. The Agreement may be terminated after its fulfillment, by agreement of the Contracting Parties, after the expiration of the period the Agreement was concluded for, or by notice of termination.
8.2. ComAp may terminate the Agreement i) by a written notice (notice is considered as delivered 5 days after posting via e-mail or 10 days after posting by regular mail) or ii) by other suitable way effective immediately to the Customer in the following circumstances:
8.2.1. any breach of the Agreement that the Customer does not remedy within 30 days from the day the Customer was notified in writing by ComAp;
8.2.2. when on the basis and for any reason of the competent jurisdiction:
a) an insolvency proceeding (bankruptcy) has been initiated with respect to the Customer;
b) the Customer is in liquidation;
c) any person undertakes or sells the property, assets or liabilities of the Customer; or
d) the Customer has been sentenced for committing a crime related to its business activities, whether committed such a crime by himself or by any person who has decision-making and/or managerial powers;
e) the Customer is represented by any person, directly or indirectly, that is in the role of the administrator, trustee, holder of prior rights to claimed receivable or for any similar reason (e.g. in accordance with Article 14 of Schedule B1 to the UK Insolvency Act 1986 and so called "floating charge”).
8.3. Termination consequences. If the Agreement is terminated earlier for any reason caused by:
a) the Customer, all outstanding amounts arising out of the Agreement become immediately due and payable, including Price of all undelivered and/or not provided Products, Services, penalties and accessories. The right of ComAp to require compensation from the Customer for damage is not affected;
b) ComAp, in the event the Customer has already paid for Products and/or Services, that were not delivered and/or provided due to the early termination of the Agreement, ComAp shall return to the Customers' account an amount in the same currency equivalent to the paid Price, after setting-off all sums owed by the Customer to ComAp including enforced sanctions and their accessories.
The above mentioned is not applicable in case of an early termination of the Agreement for reasons stated in these GTC or in the Agreement, where the obligation to pay the agreed Price has not arisen.
8.4. The rights and obligations arising from the Agreement shall be settled as of the effective date of the early termination of the Agreement.
9.1. ComAp provides warranties for its Products. The warranty period and the scope of the warranty may differ according to the place of delivery. The warranty is provided at the location of purchase of Products and/or Services (local warranty). The warranty provided from other locations is charged according to the ComAp’s price-list and/or Agreement (global warranty).
9.2. If third party products are supplied together with Products, ComAp reserves the right to provide a warranty for them i) of the same scope as for its Products or ii) of the same duration and scope provided by manufacturers for these products or iii) of duration and/or scope under the discretion of ComAp.
9.3. The basic warranty period provided is 24 months for Products and starts upon the risk of damage on Products passing to the Customer. A different warranty period may be specified in the Agreement.
9.4. The Customer may claim warranty for Products defects provided that:
a) the claim concerns Products;
b) the warranty was claimed within the warranty period;
c) the Customer provides evidence that Products have been obtained legally;
d) the Customer delivers Products at their own expense to the location specified by ComAp or the Distributor before the expiration of the warranty period; and
e) the Customer provides a sufficient description of the defect, so that it can be identified.
9.5. Reasons for rejecting defect warranty include without limitation:
a) warranty was claimed after the expiration of the warranty period;
b) the Customer does not have a valid license to the software installed in Products;
c) the defect arises as a result of an installation incorrectly performed by the Customer, incorrect commissioning, incorrect use in contradiction with verbal or written instructions on the proper use of Products;
d) using an outdated version of the software;
e) any unauthorized mechanical or software intervention in Products;
f) willful or negligent damage to Products, ordinary wear and tear, improper storage, or use in unsuitable conditions;
g) further use of Products after the defect was detected;
h) the defect is caused by failure of any equipment necessary for the correct functioning of Products including any failure caused by improper operation of such equipment, or incorrectly used electric power, frequency or voltage;
i) the defect is caused by force majeure.
9.6. The defect claim shall be assessed by ComAp as soon as reasonably possible from receipt of Products.
9.7. If the defect claim is accepted, it will be resolved by ComAp. If it is not possible to resolve the defect or if the repairs were more expensive than the Price of Product, ComAp will provide the Customer with new or substitute Products with the same or better specifications than the original Products. Providing new or substitute Products does not give rise to any breach of these GTC or any liability of ComAp to the Customer, even if new or substitute Products are rejected by the Customer.
9.8. Should the defect claimed not be covered by the warranty, ComAp shall repair Products only at the Customer's express request and only if the repair is possible. ComAp and the Customer shall enter into an Agreement on such a repair. Products, whether repaired or un-repaired, shall be returned to the Customer at the Customer's expense. ComAp shall ensure an ecological destruction of Products only at the Customer's express request. In such a case, Products shall not be returned to the Customer.
9.11. ComAp reserves the right not to accept the defect claim, particularly if it has been caused by the Customer's failure to provide cooperation to ComAp, by incorrect or untrue information provided by the Customer or by force majeure.
9.12. Local warranty for Products is included in the Price, while global warranty may require extra charge.
9.13. ComAp reserves the right to bring back to sale Products, which are not new or which have been repaired, and which simultaneously meet all technological and safety requirements for the given type of Products. For such Products ComAp may specify a different duration of the warranty period.
9.14. If the claimed defect is recognized by ComAp, the duration of the warranty period will be interrupted throughout the whole period during which the defect is assessed and subsequently removed by ComAp. The warranty period is extended by the length of its interruption.
9.15. A longer warranty period or other Services that are outside the warranty scope may be provided by ComAp at an extra charge.
9.16. Full basic warranties are provided only for Registered Products.
9.17. Derogations from this article according to the region:
WARRANTY AND LIMITATION OF LIABILITY
9.18. These articles apply only to the extent that any supply of Goods or Services is made to a ‘Consumer’ as defined in the Australian Consumer Law.
9.19. Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are (a Consumer) entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are (a Consumer) entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
9.20. Other than as outlined specifically in these GTC, to the extent permitted by law, where ComAp becomes liable to the Customer in any manner for any breach of any condition or warranty expressed or implied in relation to the supply of Goods or Services to the Customer, ComAp’s liability will be limited, at ComAp’s sole discretion to either:
a) In relation to the supply of Goods:
(1) the replacement of the Goods or the supply of equivalent Goods;
(2) the repair of the Goods;
(3) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(4) the payment of the cost of having the Goods repaired; and
b) In relation to the supply of Services:
(5) the supplying of the Services again; or
(6) the payment of the cost of having the Services supplied again.
9.21. If any action is brought by the Customer against ComAp, pursuant to Part 5.4 Division 1 of the Australian Consumer Law, ComAp’s liability will be as prescribed in Part 5.4 Division 1 of the Australian Consumer Law.
9.22. To the extent permitted by law, the Customer releases and indemnifies ComAp and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Customer and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of or in relation to any breach by the Customer of any warranty provided by it under the first paragraph of these article.
9.23. To the extent permitted by law, ComAp will have no liability to the Customer however arising, including, without limitation, under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity, arising out of or in connection with the Agreement.
10.1. ComAp disclaims any liability for damage caused by Products and/or Services, unless these GTC or the Agreement state otherwise. Liability for damage can be claimed only upon proof and if it directly relates to Products and/or Services, unless otherwise specified in the Agreement.
10.2. Damages shall be limited to the amount of 20% of Price for each individual damage, in total to be limited to the amount of 100% of Price, for all damages under the individual Agreement. Different limits may be specified in the Agreement.
10.3. Damages are not provided particularly for economic losses, loss of profits, loss of contracts, loss of opportunity, loss of business, loss or depletion of goodwill, increased overheads or administration expenses, management time, loss of savings, loss of data, attorney or legal fees, or any type of special, indirect or consequential loss of any nature whatsoever (including without limitation loss or damage suffered by the Customer as a result of an action brought by any third party) even if such loss was reasonably foreseeable or ComAp had been advised of the possibility of the Customer incurring it or for any other similar reason.
10.4. Liability for damage caused by Products and/or Services is excluded for the reasons on which the claimed warranty may be refused and for all the reasons when the damage occurred as a result of unauthorized or improper act or omissions of the Customer or any third party different from ComAp or due to a breach of the Agreement.
10.5. Liability for damage caused during the provision of Services or as a result thereof is granted only if the damage occurred due to willful misconduct of ComAp or as a result of its gross negligence.
10.6. Liability for damage related to the products of third parties that are part of ComAp's products are limited to the amount of liability that such third parties provide on their products.
10.7. Any other provisions on damages other than those mentioned in these GTC or in the Agreement, shall be disregarded.
10.8. The Customer is obliged to inform ComAp about any defect and/or damage on the Products and/or caused by ComAp’s Products and/or Services immediately and stop the use of Products and/or Services after the defect was detected and/or damage was incurred.
10.9. Liability of ComAp for damage caused by delay of delivery of Products resulting from administrative requirements of authorities (including customs) is excluded.
11. Customer acknowledgement
The Customer acknowledges, agrees, represents and warrants that:
a) use of Products and/or Services is outside the control of ComAp, and the Customer is satisfied that Products and/or Services have (unless Products and/or Services are returned as permitted under an Agreement) the condition, characteristics, quality and attributes that will make them suitable or fit for any ordinary or special purpose required for those Products and/or Services, even if that purpose was made known to ComAp;
b) the Customer has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure Products and/or Services and any Products that is produced from them will be without defect and suitable or fit for any purpose required for them; and
c) it has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by ComAp or anyone on its behalf, or apparently on its behalf, in respect of Products and/or Services, other than those that are expressly contained in the Agreement.
12. Force majeure
12.1. Contracting Parties are obliged to take maximum precautions to prevent the negative impacts of force majeure on provided supplies and try to prevent them in the greatest possible extent.
12.2. A breach of an obligation does not occur provided that the breach was caused by an obstacle that is i) independent of the will of the Contracting Parties ii) the obstacle was not predictable at the time of concluding the Agreement and iii) it could not be averted or overcome by the will of the Contracting Parties. The liability is excluded for the duration of the obstacle, unless a complete cessation of the subject of the performance due to arising circumstances and/or a delay in performance of terminated (fixed) contracts and authorized party insists on the fulfillment of the agreed terms (or disagrees with alternative performance). In such a case the liability of the Contracting Parties is fully excluded.
12.3. Force majeure is considered, including but not limited to:
12.3.1. war, civil unrest and revolution, pirate attacks, political upheavals, natural disasters (floods, earthquakes, volcanic eruptions, tsunamis, hurricanes, fires, storms, etc.), boycotts, embargoes and other restrictions from the authorities, terrorist attacks, epidemics.
12.4. Denial of export or import permits necessary for the provision of performance is not considered as force majeure.
12.5. Contracting Party not fulfilling its contractual obligation due to force majeure is obliged to notify the other Contracting Party about this fact in writing and state what the implications on performance in relation to the other Contracting Party will be. If the other Contracting Party is not notified about the force majeure, the circumstances causing the force majeure will be disregarded, and the Contracting Parties are obliged to perform as if there is no force majeure.
12.6. Similar provisions apply in relation to carriers of Products and to any other third party involved in providing performance (manufacturer, the Distributor).
13.1. No waiver by ComAp of any of the Customer’s obligations under Agreement shall be deemed effective unless made by ComAp in writing, nor shall any waiver by ComAp in respect of any breach be deemed to constitute a waiver of or a consent to any subsequent breach by the Customer of its obligations.
13.2. The following provisions of GTC shall survive the termination (including expiry) of any Agreement:
i) the rights and obligations occurring before an early termination of the Agreement, which by their nature will continue fter the termination of the Agreement;
ii) the rights and obligations arising from Intellectual Property Rights;
iii) prohibition of withholding payment of any invoice issued by ComAp;
iv) prohibition of offsetting of any Customer´s claims against ComAp;
v) ComAp prior written consent to the assignment of any claims against ComAp;
vi) Intellectual property rights;
vii) provisions on warranty;
viii) provisions on liability; and
ix) if it is stated in these GTC or in the Agreement.
13.3. Any notice or other communication pursuant to, or in connection with Agreement shall be in writing (paper or electronic) and delivered personally, or sent by first class pre-paid recorded delivery post (air mail if overseas), to the party due to receive such notice at its registered office or to such other address as may have been notified in writing to the other parties or by sending it by e-mail (subject to the original notice or communication being sent by post on the same day in the manner specified above). Notice is considered as delivered 5 days after posting via e-mail or 10 days after posting by regular mail.
13.4. GTC are drawn up in the English language. If these GTC are translated into another language, the English language text shall in any event prevail.
13.5. Severability Clause. Should any provision of these GTC in whole or in part be or become invalid, impracticable or unenforceable, the validity of the other provisions shall not be affected thereby. In such a case, the invalid, impracticable or unenforceable provision shall be deemed to be replaced by a provision which, to the extent admissible according to the applicable laws, comes closest to the purpose of the invalid, impracticable or unenforceable provision.
13.6. The provisions of the Agreement apply only to Contracting Parties.
13.7. In these GTC, unless otherwise specified:
13.7.1. references to ComAp and the Customer include their permitted successors and assignees;
13.7.2. headings to clauses are for convenience only and do not affect the interpretation of these GTC;
13.7.3. words indicating the singular include the plural;
13.7.4. references to persons shall include companies and other unincorporated associations or bodies and (in each case) vice versa.
13.8. No provisions of consumer law by any jurisdiction will apply to these GTC. The Customer is not deemed for a consumer in according with acts designed to protect consumers.
13.9. ComAp may at its own discretion generate new access data to legally acquired software, whether used alone or together with ComAp's Products, provided that:
a) The Customer has requested ComAp to provide the access data, demonstrating that the responsible person different from ComAp, that has right to the access data, has ceased to exist without legal succession, or demonstrably refuses to communicate with the Customer without any specific reason; or
b) It is required by public interest. In these cases, generating and provision of the new access data shall not be considered as infringement of intellectual property rights and/or any other rights of third parties or the Customer.
13.10. The Customer confirms compliance with applicable EU and/or US sanctions and/or any other applicable export control policies, and that the Customer is not a subject to any sanctions.
13.11. The Customer declares that he is not directly or indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons or in missile technology programs and hardware, software, technology, or services may not be exported, re-exported, transferred or downloaded to any such entity.
13.12. The Customer is obliged to behave ethically in compliance with the UK Bribery Act (2010) and is therefore prohibited to offer, accept or demand any payment or asset of significant value that can be considered as bribe, commission or fee, especially when dealing with state administration.
13.13. The Customer is obliged to comply with local health and safety regulations while using and handling ComAp's Products.
13.14. The Customer shall keep confidentiality regarding information provided by ComAp which is not generally known to the public and is or should be reasonably understood to be confidential. If a non-disclosure agreement had been concluded between ComAp and the Customer before the execution of the Agreement, the Customer is obliged to follow the rules agreed therein.
14. Register of products
14.1. For purpose of this article 14:
Products - mean i) equipment, controller, HW that ComAp agrees to supply to the Customer under the Agreement and/or ii) any subject to the License Agreement. Condition for the proper use of Products are their registration.
14.2. The Customer is obliged to register all Products. Registration is provided in accordance with the License Agreement, with respect to other Products in accordance with this provision.
14.3. The Customer shall register Products on the website www.comap-control.com, where he provides information on i) Products, especially the type, date and place of their purchase, place of their operation, production or other identification number, and ii) itself, particularly the name, registered seat, ID no. and a person authorized to act on behalf of the Customer.
15. Law and jurisdiction
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
15.1.1. These GTC shall be governed by and construed and interpreted by English law in all respects (including formation) without regard to principles of law that might make the law of some other jurisdiction applicable (conflict of laws).
15.1.2. In the event of any dispute or differences arising between the Contracting Parties hereto out of or in connection with these GTC or their validity or of any documents arising from it or made a part hereof or any amendments thereto, the Contracting Parties shall endeavor to reach an amicable agreement, but if such agreement is not reached within 30 days of first notification of the reason of the dispute then, all disputes arising in the connection with these GTC shall be resolved, to the exclusion of the ordinary courts, by a three-person Arbitral Tribunal appointed in accordance with the UNCITRAL 15.1.3. Rules. Both Contracting Parties shall accept the award of the above mentioned arbitrators as final and binding, and such award may be entered in any juridical court having jurisdiction or application may be made to such court for juridical acceptance of the award and an order for enforcement, as the case may be. All costs and expenses incurred in connection with any arbitral proceedings hereunder shall be borne by the losing party, except as otherwise provided in the arbitral award. The place of arbitration shall be in Prague, Czech Republic. The language to be used in the arbitral proceedings shall be English.
15.2.1. These GTC shall be governed by and construed and interpreted by Illinois law in all respects (including formation) without regard to principles of law that might make the law of some other jurisdiction applicable (conflict of laws).
15.2.2. In the event of any dispute or differences arising between the Contracting Parties hereto out of or in connection with these GTC or their validity or any documents arising from it or made a part hereof or any amendments thereto, the Contracting Parties shall endeavor to reach an amicable agreement, but if such agreement is not reached within 30 days of first notification of the dispute, then all disputes arising in the connection with these GTC shall be resolved, with the exclusion of the ordinary courts, by a three-person Arbitral Tribunal appointed in accordance with the UNCITRAL Rules. Contracting Parties shall accept the award of the above mentioned arbitrators as final and binding, and such award may be entered in any juridical court having jurisdiction for acceptance of the ward or enforcement, as the case may be. All costs and expenses incurred in connection with any arbitral proceedings hereunder shall be borne by the losing party, except as otherwise provided in the arbitral award, or agreed upon in writing. The place of arbitration shall be Chicago. The language to be used in the arbitral proceedings shall be English.
15.3.1. These GTC shall be governed by the laws of the State of South Australia (excluding its conflict of laws provisions) and the Customer must submit to the non-exclusive jurisdiction of the courts of or exercising jurisdiction of that state and the Customer waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
15.4. ARAB LEAGUE
15.4.1. The Agreement shall be governed by and construed in accordance with the law of England and Wales.
15.4.2. Each of the Contracting Parties hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the courts of the Dubai International Financial Center in any suit, action or proceeding arising out of or relating to the Agreement or for recognition and enforcement of any judgment in respect thereof, and each of the parties hereby irrevocably and unconditionally agrees, to the fullest extent permitted under applicable law, that all claims in respect of any such suit, action or proceeding may be heard and determined in the courts of the Dubai International Financial Center. Each of the Contracting Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
15.4.3. Nothing in the Agreement shall limit or affect the right of ComAp to bring any suit, action or proceeding arising out of or relating to the Agreement against the Customer or its property in any other court having jurisdiction over the Customer or its property.
15.4.4 In the event of any dispute between the Contracting Parties arising out of or in connection with the Agreement or its validity or any documents arising from or made a part of the Agreement or any amendments thereto, the Contracting Parties shall endeavor to reach an amicable agreement for a period of 30 days from one party’s first notification to the other party of the matter in dispute.
15.4.5 If the parties do not reach agreement as to a matter in dispute within 30 days of such first notification of the dispute, then either party may refer the matter to arbitration. The rules and administration of the arbitration shall be as follows:
a) any arbitration hereunder shall be carried out under the procedures, rules and regulations of the DIFC-LCIA Arbitration Centre (the "Arbitration Rules") by a panel of three arbitrators to be appointed in accordance with the Arbitration Rules;
b) the seat of the arbitration shall be the Dubai International Financial Centre (DIFC) and all arbitration hearings shall be held in Dubai, United Arab Emirates unless otherwise agreed by the Contracting Parties;
c) the parties agree that the procedural law governing the conduct and procedure of the arbitration shall be the laws of the DIFC; and
d) such arbitration shall be conducted in the English language and the award of any arbitrators, together with the reasons for the determination, shall be written in the English language.
15.4.6. The Contracting Parties agree that all interim or final decisions and/or awards of the arbitrators (1) shall be binding on the Contracting Parties, (2) shall be given effect and implemented forthwith by them, (3) shall not be subject to judicial appeal or review (all rights to which the Contracting Parties hereby waive) to the fullest extent permissible under applicable law, and (4) may be enforced in any court having jurisdiction.
15.4.7. All costs and expenses incurred in connection with any arbitral proceedings hereunder shall be borne by the losing party, except as otherwise provided in the arbitral award or agreed upon in writing.
15.5. ASIA PACIFIC REGION
15.5.1 These GTC shall be governed by and construed and interpreted by English law in all respects (including formation) without regard to principles of law that might make the law of some other jurisdiction applicable (conflict of laws).
15.5.2. In the event of any dispute or differences arising between the Contracting Parties hereto out of or in connection with these GTC or their validity or of any documents arising from it or made a part hereof or any amendments thereto, the Contracting Parties shall endeavor to reach an amicable agreement, but if such agreement is not reached within 30 days of first notification of the dispute, then, all disputes arising in the connection with these GTC including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
Date and version GTC: 01.05.2018, v.2, Peter Sandin, ComAp CEO