AGREEMENT FOR THE SALE OF GOODS AND SERVICES BETWEEN
- (1) TELTRONIC, S.A.U. of Polígono Malpica, calle F-Oeste, 50016, Zaragoza Spain ("TELTRONIC"), and;
- (2) The Customer.
DEFINITIONS AND INTERPRETATION
- 1.1 "Agreement" shall mean the terms and conditions set out herein.
- 1.2 "Hardware" means items of hardware equipment excluding Software.
- 1.3 "Order" means any order placed by the Customer on TELTRONIC specifying Product requirement and agreed by TELTRONIC.
- 1.4 "Products" shall mean Software and/or Hardware.
- 1.5 "Quotation" means the quotation for Products and/or services provided by TELTRONIC to the Customer in response to a request for the same from the Customer.
- 1.6 "Software" means the object code version of the software, including modifications thereto.
- 1.7 "Specification" means the technical specification as produced by TELTRONIC.
- 1.8 "Territory" shall mean the world, but always excluding the United States of America and Canada.
- 1.9 "Type Approval" means regulatory approval of Hardware and/or Software for licensing certification.
- 1.10 "Unit" shall mean TELTRONIC's handportable or mobile excluding the battery, accessories and Software.
- 1.11 "System" shall mean TELTRONIC's radio infrastructure.
- 2.1 This Agreement embodies the entire legal and contractual relationship between the Parties relating to the subject matter hereof and, except in the case of any fraudulent misrepresentation made by either Party and/or save as may be expressly referred to or referenced herein, terminates, cancels and supersedes all prior representations, agreements or understandings (written or oral) with respect to this Agreement and its subject matter.
- 2.2 Every Order is subject to these terms and conditions of sale, which may not be modified or varied without TELTRONIC's prior agreement in writing, and these terms and conditions shall replace any other conditions that may be submitted by the Customer at any time. TELTRONIC reserves the right to reject any Order received from the Customer.
- 2.3 Any descriptive material provided by TELTRONIC to the Customer is provided solely to assist the Customer. It does not form part of any contract and TELTRONIC is not legally responsible for its contents. The Customer acknowledges that it is responsible for selecting Products to achieve its required results including the combination with other equipment or software with which the Products are intended to be used.
- 2.4 Where this Agreement comprises more than one Order, each Order shall be regarded as a separate Agreement except where stated to the contrary.
VALIDITY OF QUOTATIONS
- Unless otherwise stated all Quotations are valid for 90 (ninety) days from the date of the Quotation.
ORDER PROCESS VARIATION AND CANCELLATION OF ORDERS
- 4.1 The Customer shall make Orders by sending a complete and duly signed and stamped purchase order to TELTRONIC that TELTRONIC will then be free to accept or reject. Notwithstanding the same, TELTRONIC shall use all reasonable endeavours to fulfil any Order properly made and accepted by it, and will not unreasonably refuse any such Order. It is defined a minimum order of 150 Euros
- 4.2 TELTRONIC's employees and/or agents are not authorised to make any representations concerning the Products unless confirmed by TELTRONIC in writing and signed by a duly authorised officer of TELTRONIC. The Customer agrees that it does not rely on any such representations that are not confirmed in writing by a duly authorised officer of TELTRONIC.
- 4.3 TELTRONIC will acknowledge any Order correctly made by any means that it reasonably considers appropriate
- 4.4 The Customer must accompany the Order with sufficient information, including, as appropriate and necessary any licensing, engineering or other information to enable TELTRONIC to proceed with any of its obligations under this Agreement.
DELIVERY OF PRODUCTS
- 5.1 TELTRONIC shall give to the Customer an estimate of the time of delivery of the Order, and the Customer acknowledges that time for delivery shall not be of the essence. The estimated delivery date advised by TELTRONIC shall not be binding and is indicative only unless otherwise agreed in writing for a specific Order.
- 5.2 Unless otherwise agreed, delivery shall be EXW Zaragoza, Spain, in the case of sales inside Spain, and in other cases CIP Destination for orders over €10,000 (Ten thousand Euro) and FCA [Free Carrier] for orders less than €10,000 Euro (Ten thousand Euro) (as defined by the International Chamber of Commerce Incoterms 2010).
- 5.3 In the event that the Customer requires delivery terms different from those contained herein, the Customer may request that TELTRONIC quotes a charge for such delivery terms as advised to it. If the quote is accepted by the Customer in the manner prescribed the quote and the delivery terms to which it relates shall form part of this Agreement and shall supersede the terms herein to the extent necessary.
- 5.4 The Customer shall give all necessary information to enable TELTRONIC to deliver the Order. In the event that TELTRONIC is unable to deliver as a result of not being supplied with necessary information TELTRONIC shall be entitled to place the Order or part of the Order into storage notwithstanding the packaging obligations below and make a reasonable charge to the Customer for the same.
- 5.5 Part performance of the delivery of the Order shall not entitle the Order to be terminated. TELTRONIC shall use all reasonable endeavours to ensure full delivery.
- 5.6 TELTRONIC supplies its products by default with the last Hardware and Software release available, if the customer for any reason requires a specific Hardware and Software release, it must be indicated in the order.
PAYMENT TERMS, PRICE AND INVOICING
- 6.1 The price applicable to any Order shall be as stated in the Quotation. Any variation to the Quotation shall only be valid if agreed between the Parties prior to the Order being submitted by the Customer and accepted by TELTRONIC. The delivery schedule applicable to any Order shall be stated in the Order Acknowledgement.
- 6.2 Prices are net and shall be exclusive of any local taxes or similar charges, including without limitation any sales tax, withholding tax, customs duties or any other fees, levies or imposts as may be payable on the Products from time to time. Any such charges shall be payable by the Customer.
- 6.3 The Customer shall pay 100% (one hundred percent) of the Order value for Orders whose value is less than €10,000 (Ten thousand Euro) once TELTRONIC send the Order Acknowledgement.
- 6.4 The terms of payment for all Orders whose value is greater than €10,000 (Ten thousand Euro) shall be as follows:
a) 25% advance payment before Order Acknowledgement. TELTRONIC provides pro-forma invoice. The Customer is not entitled to request a refund of the amount paid as advance payment, if for any reason, cancel the Order fully or partially, if waive to request de delivery of the Order fully or partially or if the Order is terminated for any reason. TELTRONIC will not refund any amount under this heading.
b) The remaining 75% must be secured by an Irrevocable Letter of Credit (ILOC), by a stand by letter of credit (SBLC) or by a bank guarantee. The issuing bank, documents required and wording of any ILOC or SBLC shall be approved by TELTRONIC at its sole discretion, although such approval will not be unreasonably withheld. The ILOC will be payable at sight and confirmation of the ILOC is requested. TELTRONIC must receive the ILOC, SBLC or bank guarantee before goods will be shipped. The issuing bank and wording of any bank guarantee shall be approved by TELTRONIC at its sole discretion, although such approval will not be unreasonably withheld. Should the ILOC or Bank Guarantee not be provided and approved by TELTRONIC prior to TELTRONIC accepting the Order(s) then TELTRONIC shall be entitled to suspend any or all work on the Order(s), without any liability whatsoever, until such time the said ILOC or Bank Guarantee is made available and approved by TELTRONIC.
- 6.6 Exceptionally, TELTRONIC, at its sole discretion, can grant a limit of credit according to its credit risk policy and financial criteria. The Customer accepts expressly the validity of the criteria that in each case TELTRONIC shall consider in order to reduce operational and credit risks to an acceptable level.
TYPE APPROVAL, INTEROPERABILITY AND ACCEPTANCE TEST CRITERIA AND PROCEDURES.
- 7.1 The Customer shall obtain any permit or consent from the relevant authorities that may be required to import, operate or use the Products in the Territory.
- 7.2Systems and terminals are being continually developed and upgraded. Therefore the Customer acknowledges that there is no guarantee that TELTRONIC's terminals will inter-operate with a network or terminals supplied by any other manufacturer. The Customer is responsible for ensuring that such interoperability has been fully tested to its satisfaction. If the Customer requires TELTRONIC to participate in such interoperability demonstrations then TELTRONIC will provide a Quotation for this service Acceptance test criteria and procedures for Products shall be agreed in writing for any specific Order.
- 7.4 Once received the Products, the Customer will verify the content of the same one in a term less than fifteen days from their reception, to verify possible defects or non conformities that could be attributable to TELTRONIC, facts that the Customer will have to communicate to TELTRONIC immediately.
- 7.5 Except in the case that acceptance test have been specified in the order in criteria and dates between TELTRONIC and the Customer, it will be considered that the Products have been accepted if fifteen days from the reception of the Products by the Customer have passed and TELTRONIC has not received a written communication on possible defects or non conformities. As of that moment it will begin to count the period of guarantee. It will be considered to all the effects that the Products have been accepted by the Customer, if, having been agreed acceptance tests, these tests are not carried out in the period agreed for reasons non attributable to TELTRONIC or if the Customer begins to use the Products.
- 8.1 All Units shall be warranted free from defects due to faulty design, workmanship or materials for a period of 12 (twelve) months from the date of despatch by TELTRONIC. All other Hardware excluding batteries and consumable items shall be warranted free from defects due to faulty design, workmanship or materials for a period of 12 (twelve) months from the date of despatch from TELTRONIC. All batteries shall be warranted to retain at least 80% (eighty percent) of original capacity after the earlier of 12 (twelve) months or 500 (five hundred) charge cycles, subject to charging with a TELTRONIC approved battery charger. TELTRONIC shall at its option repair or replace any Product or part thereof that is found to be defective during the relevant warranty period. The Customer shall comply with any reasonable instruction given by TELTRONIC in carrying out its obligations. Warranty terms for Systems shall be agreed in writing for any specific Order.
- 8.2 The warranty shall not apply where any part of an Order is found defective arising from misuse, abnormal working conditions of temperature, humidity or magnetism, wrongful or incorrect storage, entrance of liquid or fluids, blows, crushing, alteration or repair of the Products without TELTRONIC's prior written approval.
- 8.3 In case a defect is detected in any Product, the Customer shall notify TELTRONIC by e-mail (firstname.lastname@example.org) requesting a Return Merchandise Authorization (RMA) and shall follow the provided instructions about how to manage the delivery of the defective Product. Shipping costs to TELTRONIC in CIP Destination conditions will be paid by the Customer and TELTRONIC will pay the shipping costs of returning the Product to the Customer in CIP Destination conditions (as defined in Incoterms 2010 International Chamber of Commerce).
- 8.4 TELTRONIC warrants the supply of spare parts and repairs to the customer for a maximum period of 5 years from the date of delivery of the goods (not applicable to analog radio products).
- 8.5 The Customer acknowledges that the Software cannot be tested in every possible permutation and accordingly TELTRONIC does not warrant that Software will be free of all defects or that its use will be uninterrupted. In the case of defects in Software contained in an Order for which TELTRONIC shall be responsible under this Agreement TELTRONIC shall use all reasonable endeavours to correct such defects at the earliest opportunity or replace it at its option. The Customer shall provide TELTRONIC with any assistance it may reasonably require in the resolution of Software defects. Defect correction shall be limited to those Software defects that materially affect the performance of the Order or part of the Order and which have been discovered within a period of 12 (twelve) months from delivery.
- 8.6 TELTRONIC does not warrant the accuracy and/or reliability of data derived by the Unit's Global Positioning System ("GPS"). The GPS accuracy statistics set out in the Specification can only be achieved under certain conditions, e.g. open space, sufficient number of satellites visible, signal levels above acceptable magnitude, etc. and as such, inaccurate data may be output by the GPS where all relevant conditions are not met. The Parties agree and acknowledge that data provided by the GPS is for reference only.
- 8.7 The Customer shall not rely upon any warranty (other than those stated in this Agreement) or technical statements concerning the Hardware and Software which is to be supplied under this Agreement except where such statements have been confirmed in writing and signed by a duly authorised officer of TELTRONIC and expressly incorporated herein.
- 8.8 The warranties set out in this Agreement exclude and shall be in lieu of all other conditions and warranties express, implied, statutory or otherwise in respect of the Products.
- 8.9 Whether maintenance and spare parts are not contracted, TELTRONIC cannot guarantee any minimum reaction time upon request to our Customer Service. Furthermore, TELTRONIC will do its best according to the availability of resources on receipt of such requests.
- 8.10 The above warranties of the Hardware and Software shall not apply in the event that any defect derives from:
(a) A combination of Software and or the Hardware with any software, equipment or device not supplied or approved in writing to the Customer by TELTRONIC;
(b) Any modification or customisation of the Software and/or the Hardware by or on behalf of the Customer other than by TELTRONIC and/or its subcontractors or with its express fully informed prior approval;
(c) Use of the Software and/or the Hardware in contravention of the manufacturers instructions or use other than for its designed purpose or in inappropriate environmental conditions and/or;
(d) The defect in the Hardware arises as a result of modifications or interference with the Hardware carried out by any party other than TELTRONIC, the manufacturer or its authorised subcontractors.
- 8.11 Notwithstanding any other term or condition of this Agreement, the provision by TELTRONIC of the remedies specified in this clause 8 shall be the Customer's sole and entire remedy in respect of the said non-conformity or defects.
- 9.1 All intellectual property rights, including but not limited to the right to patent, copyright, trademarks and design rights in the Hardware, Software and/or arising and created under and in connection with this Agreement shall remain vested in and/or automatically and immediately upon creation vest in TELTRONIC and/or its licensors.
- 9.2 Subject to clauses 10 and 11, and the Customer's compliance with the Software licence, TELTRONIC shall indemnify the Customer in the event of infringement of any third party intellectual property right published or acquired at the date of this Agreement by the use or sale of the Hardware and/or Software against all costs and damages which the Customer incurs in any action for such infringement and or for which the Customer becomes liable in any such action provided always that TELTRONIC shall not be liable to indemnify the Customer in the event that:(a) The Customer has failed to permit TELTRONIC (at TELTRONIC's expense) to conduct any litigation that may ensue and all negotiations for a settlement of the claim, or
(b) The Customer has made any admission that is or may be prejudicial to TELTRONIC in respect of an alleged infringement without TELTRONIC's written consent.
- 9.3 The Customer warrants that any design or instruction furnished or given to TELTRONIC by the Customer shall not cause TELTRONIC to infringe any third party intellectual property right in the performance of TELTRONIC's obligations in accordance with this Agreement.
- 9.4 Save as provided in this clause, TELTRONIC shall not be under any liability howsoever arising in respect of any infringement or alleged infringement of third party intellectual property rights.
- 10.1 TELTRONIC hereby grants to the Customer a nonexclusive non-transferable licence to use the Software in the Territory subject to compliance with this software licence and/or to sub-licence the Software supplied to the Customer by TELTRONIC in connection with and for the operation of the Hardware. This licence shall not be construed, deemed or interpreted as giving the Customer any proprietary right in any Software.
- 10.2 The Software is supplied to the Customer in object code and to the best of its knowledge TELTRONIC has supplied the latest version
- 10.3 The Customer is not entitled, unless otherwise agreed in writing between the Customer and an authorised officer of TELTRONIC, to any source code (in full or in part) or documentation or other materials from which the source code or any part thereof can be derived.
- 10.4 The Customer shall not in relation to the Software or any documentation associated with the same do any of the following: copy, permit to be copied, decompile, reverse engineer, translate, modify, disassemble, place on to the internet or any intranet, publish, decode, enhance, adapt, merge or reduce the Software into source code or any other low level language.
- 10.5 Notwithstanding the above, the Customer may make one back-up copy of the Software and any associated documentation for security purposes only.
- 10.6 In the event that the licence is terminated as a result of a breach by the Customer, then the Customer agrees to remove any non licensed Software from its equipment and return, at its expense, or, if required, destroy any Software, back-up copies (to the extent that such back-up copies are no longer reasonably required by the Customer), associated documentation and information relating to the Software.
- 10.7 This clause applies to all copies of the Software as it applies to the original copy.
- 10.8 In the event that the Customer needs further advice, assistance or information to achieve interoperability not warranted under this Agreement then the Customer should contact TELTRONIC. If TELTRONIC supplies the Customer with such information then the Customer agrees that it will only use that information for the purpose of achieving interoperability.
- 11.1 TELTRONIC shall indemnify the Customer against damage to property other than the Hardware and Software and death or injury to persons to the extent caused by the negligence of TELTRONIC, but not otherwise and:
(a) TELTRONIC and its insurers shall immediately be notified of any claim and shall have full power to negotiate and settle any claims and
(b) TELTRONIC's total liability for damage to tangible property shall be limited to €1,000,000 (One million Euro) for any one event or any series of connected events in a twelve-month period.
- 11.2 The Customer shall similarly indemnify TELTRONIC and shall maintain or procure appropriate insurance for damage to TELTRONIC's property (to the same limit) and death and injury to persons to the extent caused by the negligence of the Customer or its personnel or contractors.
- 11.3 Save for liability for death or personal injury and without prejudice to any other provision of this clause 11, TELTRONIC hereby excludes all liability whether that liability arises under or in connection with this Agreement, its negligence, any breach of contract, statutory duty or otherwise (to the fullest extent permitted by law) in respect of any loss of profit or other economic loss, indirect loss, consequential loss, special loss, loss of a chance, damage to goodwill and/or loss of or damage to any other intangible asset.
- 11.4 Without prejudice to any liabilities of TELTRONIC that may arise under clauses 11.1 and 11.3 above the Customer hereby agrees that the total aggregate liability of TELTRONIC to the Customer under or in connection with this Agreement shall be no more than the value of any Order or any part thereof in default.
- 11.5 TELTRONIC shall not be liable for any loss, costs, expenses and or damages arising due to or in connection with the denying or withdrawing of any permit or consent in respect of the importing, distribution, reselling or operation of the Products.
- 11.6 Clause 11 represents the entire liability of TELTRONIC under or in connection with this Agreement and shall apply before and/or after any termination of this Agreement.
TITLE, RISK AND INSURANCE
- 12.1 Title in all Hardware shall pass to the Customer upon receipt of full payment therefor by TELTRONIC.
- 12.2 Risk in the Products shall pass to the customer EXW Zaragoza, Spain, in the case of sales inside Spain, and FCA or CIP destination in other cases (in accordance with Incoterms 2010).
- 12.3 Title in all Software and in the media in which it is embodied shall not pass to the Customer in any event.
- Neither Party shall be responsible for any failure or delay in performance of its obligations under this Agreement due to any force majeure event such as, but not limited to, an Act of God, weather of exceptional severity, refusal of licence (other than as a result of any act or omission of a Party) or other Government act or omission, any act or omission of the Highways Authorities or other competent authority, war, military operations, terrorist action, riot, fire, explosion, accident, lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, lockouts, the act or omission of any party for whom a Party is not responsible or any other cause beyond its reasonable control.
- 14.1 This Agreement shall constitute the entire agreement between TELTRONIC and the Customer in respect of the subject matter hereof and any other terms, conditions, performance criteria, guarantees, trade practise, custom or prior representation shall be of no effect unless expressly incorporated herein.
- 14.2 TELTRONIC's catalogue, pamphlets, general and advertising literature are intended to display the features of the Products and the information contained in such publications shall not form part of this Agreement.
- 14.3 It will be considered that the present terms and conditions have been communicated to the Customer (i) if TELTRONIC communicates to the Customer the Website where these terms and conditions are informed (ii) if the Customer receives a bid from TELTRONIC accompanied by these terms and conditions (iii) if the Customer has previously received them in the course of his commercial relationship with TELTRONIC, considering in this case accepted by the Customer to all the effects when the Customer places an Order.
- In the event that any provision of this Agreement should be held to be invalid or unenforceable, the remaining provisions shall not be affected thereby.
JURISDICTION AND LAW
- This Agreement shall be subject to Spanish Law and is subject to the exclusive jurisdiction of the Spanish Courts
- Save unless expressly agreed between the Parties' authorised representatives, no admission, act or omission made by either Party shall constitute a waiver or release from any obligation or liability contained herein.
- Rights accrued at the date of any termination of this Agreement and rights intended by their nature to survive termination shall survive any such termination of this Agreement.
SIGNED for and on behalf of the Customer
SIGNED for and on behalf of TELTRONIC