1. Offer, confirmation or agreement
These terms and conditions of commercial sale (the “Terms and Conditions”) apply to and form an integral part of:
(a) all quotations and offers (hereinafter both referred to as “Offer”) of Xpress Precision Engineering B.V. (“Xpress PE”) to Buyer,
(b) all acceptances, acknowledgements or confirmations by Xpress PE (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation orders of Buyer resulting from any pricing- or other framework agreement between any Buyer and Xpress PE, unless explicitly agreed otherwise in writing between Xpress PE and Buyer,
(c) any agreement resulting from such Offer or Confirmation and
(d) any agreement incorporating these Terms and Condition by reference (both types of agreements referred to under (c) and (d) shall hereinafter be referred to as an “Agreement”) regarding the sale by Xpress PE and purchase by Buyer of goods (“Products”), unless Xpress PE explicitly agrees in writing to the exclusion hereof.
These Terms and Conditions shall constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Xpress PE and Buyer relating to the sale by Xpress PE and purchase by Buyer of Products. Any terms and conditions set forth on any document or documents issued by Buyer (including “Pull Documents” as defined below) either before or after issuance of any document by Xpress PE setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Xpress PE, and any such document shall be wholly inapplicable to any sale made by Xpress PE and shall not be binding in any way on Xpress PE. No Offer, Confirmation or Agreement constitutes an acceptance by Xpress PE of any other terms and conditions and Xpress PE does not intend to enter into an Agreement other than under these Terms and Conditions.
Any Offer is expressly made conditional on Buyer’s assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer’s written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer’s acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.
In the event that any Offer or Confirmation is sent in response to Buyer’s blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any “pull” by Buyer or delivery by Xpress PE, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Xpress PE provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.
Xpress PE’s Offers are open for acceptance within the period stated by Xpress PE in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Xpress PE at any time prior to the receipt by Xpress PE of Buyer’s acceptance related thereto.
If Xpress PE receives an order from Buyer for the sale by Xpress PE and purchase by Buyer of Products and such order is not a response to an Offer by Xpress PE, or if Xpress PE receives an order or acceptance by Buyer which deviates from Xpress PE’s Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.
An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Xpress PE shall first constitute an Agreement between Xpress PE and Buyer upon explicit Confirmation by Xpress PE itself.
2. Products, quantities and pricing
Prices in any Offer, Confirmation or Agreement are in euros, based on delivery Ex-Works (Incoterms 2000) Xpress PE’s manufacturing facility or other facility designated by Xpress PE, unless agreed otherwise in writing between Buyer and Xpress PE and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Xpress PE will add taxes, duties and similar levies to the sales price where Xpress PE is required by law to pay or collect them and will be paid by Buyer together with the price.
With regard to Custom Products (as defined in Section 7 below) Xpress PE may deliver a quantity that is a maximum amount of ten percent (10%) more or less than the ordered quantity of any order line item. Such delivered quantity will be accepted and paid for – against an amount being the actual delivered quantity times the unit price – in full satisfaction of each party’s obligation under the Agreement for the quantity ordered.
3. Rights in software, documentation and intellectual property
Subject to the provisions set forth herein, the sale by Xpress PE of a Product implies the non-exclusive and non-transferable license to Buyer under any of Xpress PE’s and/or its Affiliates’ intellectual property rights (“Xpress PE’s IPR”) (1) to use and resell Products as sold by Xpress PE to Buyer, as well as (2) to use and resell apparatuses manufactured by or on behalf of Buyer that include one or more of such Products as supplied by Xpress PE (“Buyer’s Products”), but such license under (2) is only granted if and to the extent infringement of Xpress PE IPR necessarily results from applying one or more of such Products.
To the extent that software and/or documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such software and/or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Buyer under Xpress PE IPR (1) to use such software and/or documentation in conjunction with and as embedded in the Products as supplied by Xpress PE (the “Xpress PE Product”), and (2) to use such Xpress PE Product in or in conjunction with Buyer’s Products, if and to the extent infringement of Xpress PE IPR necessarily results from applying one or more of such Xpress PE Products.
If Xpress PE in connection with the sale of Products would supply any software and/or documentation to Buyer that is not embedded in the Product but that is intended for use in or in conjunction with such Product, and such software and/or documentation is not subject to a separate license agreement, such sale of Products implies, subject to the provisions set forth herein, the non-exclusive and non-transferable license to Buyer under Xpress PE’s IPR:
(a) to use said software and/or documentation in conjunction with the Products as supplied by Xpress PE and/or its Affiliates and of which Xpress PE and/or its Affiliates have identified in writing that such software and/or documentation can be used in or in conjunction with such Products, as required to enable Buyer to make the normal and intended use of Buyer’s Products; and
(b) to make and distribute copies of the software and/or documentation, either in electronic or hardcopy format, only as shall be reasonably necessary to enable Buyer to make the normal and intended use of Buyer’s Products.
Any and all references to "sale" or "sold" of any software or documentation shall be deemed to mean a license regarding such software or documentation, and no ownership or assignment of any intellectual property rights is intended nor shall be implied thereby.
The term “Affiliate” of a party shall mean any entity or other person that, directly or indirectly, controls, is controlled by or is under common control with that party.
Unless otherwise specifically agreed in writing by Xpress PE, no rights or licenses with respect to any software source code are granted by Xpress PE to Buyer. Any and all source code included as part of any software residing in or provided by Xpress PE in conjunction with any Products and any compilation or derivative thereof is the proprietary information of Xpress Holding B.V. and/or its Affiliates and is confidential in nature.
Buyer shall not: (a) modify, adapt, alter, translate, or create derivative works from, any software residing in or provided by Xpress PE in conjunction with any Products; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Xpress PE. Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Xpress PE and/or its Affiliates or its third party suppliers in any software or documentation provided by Xpress PE. Notwithstanding anything to the contrary herein, these Terms and Conditions shall not be construed as conferring any right, license or immunity, either directly or by implication, estoppel or otherwise to Buyer or any third party:
(a) under any Xpress PE IPR or intellectual property rights of any third party other than explicitly granted under these Terms and Conditions;
(b) for the combination of any Products or assemblies of which such Product forms part with one or more other items (including items acquired from Xpress PE and/or its Affiliates) even if such Products or assemblies have no substantial use other than as part of such combination, unless infringement of Xpress PE IPR necessarily results from applying one or more Products as sold by Xpress PE to Buyer.
(c) with respect to any trademark, trade or brand name, a corporate name of Xpress PE and/or its Affiliate(s), or any other name or mark, or contraction abbreviation or simulation thereof.
(d) under any intellectual property rights of Xpress PE and/or its Affiliates covering a standard set by a standard setting body and/or agreed to between at least two companies.
(e) under any intellectual property rights of Xpress PE and/or its Affiliates with respect to which Xpress PE and/or its Affiliates has informed Buyer or has published (in a datasheet or other specifications concerning the Product or elsewhere) a statement that a separate license has to be obtained and/or that no implied license is granted.
Buyer’s rights under the Agreement are conditional upon Buyer not performing, and Buyer shall not perform any actions in a manner that would require any software furnished with the Product, the Product and/or any derivative work thereof, to be licensed under Open License Terms. These actions include but are not limited to:
(f) combining such software, the Product or a derivative work thereof with Open Source Software, by means of incorporation or linking or otherwise; or
(g) distributing such software, the Product or a derivative work thereof with Open Source Software; or
(h) using Open Source Software to create a derivative work of the Product or such software, insofar as these actions would require such software, the Product or a derivative work thereof to be licensed under Open License Terms.
As used herein, “Open Source Software” means any software that is licensed under Open License Terms. “Open License Terms” means terms in any license agreement or grant that require as a condition of use, modification and/or distribution of a work that:
1. source code will be made available, or
2. permission will be granted for creating derivative works, or
3. a royalty-free license is granted to any party under any intellectual property rights regarding that work and/or any other work that contains, is combined with, requires or is based on that work.
Buyer shall indemnify Xpress PE and its Affiliates against and hold Xpress PE and its Affiliates harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 3 and Buyer shall reimburse all costs and expenses incurred by Xpress PE and/or its Affiliates in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
(a) Unless agreed otherwise between Xpress PE and Buyer in writing, Xpress PE may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable Incoterm. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Xpress PE and Buyer in writing. All payments shall be made to the designated Xpress PE’s address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Xpress PE. Buyer shall bear and pay the cost of establishing any letters of credit or arranging any other method of payment agreed for settlement of moneys due to Xpress PE under the contract. Interest will accrue on all late payments, at the rate of two (2) per cent per month or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.
(b) All deliveries and performance of work agreed to by Xpress PE shall at all times be subject to credit approval of Xpress PE. If, in Xpress PE’s judgment, Buyer’s financial condition at any time does not justify production, performance of work or delivery on the above payment terms, Xpress PE may require full or partial payment in advance or other payment terms as condition for delivery, and Xpress PE may suspend, delay or cancel any credit, delivery or any other performance by Xpress PE.
(c) Payment by Buyer of non-recurring charges, as may be made to Xpress PE for special design, engineering or production materials, shall not convey title to either the design, engineering work or special materials, but title shall remain in Xpress PE.
(d) If Xpress PE incurs exchange rate losses due to Buyer's failure to pay when payments are due, Xpress PE shall be entitled to equivalent compensation from Buyer for such losses.
(e) In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Xpress PE shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Xpress PE may suspend, delay or cancel any credit, delivery or any other performance by Xpress PE. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law or in equity.
(f) If the Buyer defaults in the punctual payment of any sum owing to Xpress PE then Xpress PE shall be entitled to the immediate return of all Products sold by Xpress PE to Buyer (or the documents of title thereto) in which the property has not passed to Buyer, and Buyer hereby irrevocably authorizes Xpress PE to recover the Products or documents and to enter any premises of Buyer for that purpose.
Demand for or recovery of the Products or documents by Xpress PE shall not of itself discharge Buyer’s liability to pay the whole of the price and take delivery of the Products or Xpress PE’s right to sue for the whole of the price.
5. Retention of title
a) After delivery of a specific order, the products shall remain Xpress PE’s property until such time Xpress PE has received full payment:
(i) for the products supplied concerning this specific order, or previous or after orders, and
(ii) of claims arising from the non-performance by the Buyer of any orders, such as damages, penalties, interest and costs.
The mere fact that Xpress PE does not have, or do not have anymore, any claim to the Buyer at a certain date shall not bar the validity of the continuation of our retention of title if Xpress PE will have a claim against the Buyer at a later date.
(b) If the products are actually in the Buyer's possession before they are paid for, they shall be deemed to have been shipped/transported on a consignment basis and Xpress PE shall be entitled at any time to recover these products (entering on to the Buyer's properties for this purpose, if necessary) or demand their return forthwith.
(c) Prior to the date of acquiring the property of the products, the Buyer shall not be entitled to dispose of the products or to use the same as collateral for any loan or to pledge the same as security for any debt or mortgage the same or otherwise to transfer or assign the same to any third party. However, the products may be used by the Buyer in the normal course of its business.
(d) In case of any amounts due and payable, the Buyer shall enable Xpress PE forthwith to regain possession of the products supplied by Xpress PE, without any prior notice of default or judicial intervention being required for that purpose. In anticipation of the event that the Buyer should fail to fulfil any of its obligations (of payment or otherwise) to Xpress PE, and without prejudice of any of our rights, Xpress PE is hereby given irrevocable authorisation by the Buyer to recover possession of the products forthwith upon Xpress PE’s demand, without any prior notice or judicial intervention being required for that purpose.
(e) It shall be the Buyer's duty to give Xpress PE immediate written notice in the event that third parties (may) enforce any claims upon any of the products which are subject to Xpress PE’s retention of title.
(f) Every payment Xpress PE receives from the Buyer shall be applied first of all towards the discharge of the debts owed to Xpress PE by the Buyer in respect of which no reservation of ownership in the terms of Article (a) is in force.
(g) The Buyer will inform Xpress PE regarding any additional local requirement applicable in the region where the products he bought from Xpress PE are stored, so as to establish and exercise Xpress PE’s retention of title. Further, the Buyer will cooperate to fill in, sign and file any additional forms, if necessary to establish and/or exercise Xpress PE’s retention of title.
6. Delivery and quantities
(a) Products shall be delivered EXWORKS (Incoterms 2000) Xpress PE’s manufacturing facility, or other facility as designated by Xpress PE, unless otherwise agreed in writing between Xpress PE and Buyer. Delivery dates communicated or acknowledged by Xpress PE are approximate only, and Xpress PE shall not be liable for, nor shall Xpress PE be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Xpress PE agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.
(b) In the event Buyer contests delivery, Buyer must request a proof of delivery from Xpress PE within sixty (60) days of the date of Xpress PE’s invoice, otherwise delivery shall be deemed completed.
(c) Buyer will give Xpress PE written notice of failure to deliver and thirty (30) days within which to cure. If Xpress PE does not cure within thirty (30) days, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
(d) Title in the Products shall pass to Buyer upon payment in full of the purchase price in respect thereof. Risk of loss of or damage to the Products shall pass to Buyer upon Xpress PE’s delivery in accordance with the applicable Incoterm.
(e) If Buyer fails to take delivery, then Xpress PE may deliver the Products in consignment at Buyer’s costs and expenses.
(f) In the event of shortages Xpress PE may allocate its available production and Products, in its sole discretion, among its customers and as a result may sell and deliver to Buyer fewer Products than specified in Xpress PE’s Offer, Confirmation or Agreement, as the case may be.
(g) Xpress PE shall be entitled to deliver the Products in one or more consignments unless otherwise expressly agreed. In all cases where delivery is made in one or more consignments or installments, each consignment or installment shall be deemed to be made under a separate contract and may be invoiced separately, and cancellation of any consignment or installment shall not avoid or affect contracts as to other consignments or installments.
(h) If Xpress PE and Buyer have agreed that the Products are sold subject to prior inspection by Buyer, such inspection shall take place at Xpress PE’s works or other facility designated by Xpress PE, and once Buyer or his representative has inspected and approved the Products, the Products shall be conclusively presumed to be in accordance with the contract and satisfactory in materials and workmanship.
(i) In respect of each consignment of the Products to which Condition 6(h) above does not apply Buyer shall inspect the Products immediately on receipt thereof at their consigned destination and shall within seven (7) days of such receipt notify Xpress PE of any claim that the Products are not in accordance with the contract. If Buyer does not so notify Xpress PE of such claim within such seven (7) days period, the Products shall be conclusively presumed to be in accordance with the contract. In the event that Buyer establishes to Xpress PE’s satisfaction that the Products are not in accordance with the contract Buyer’s sole remedy shall be limited as Xpress PE may elect to the replacement of the Products or refund of the purchase price against return of the Products.
7. Custom product
Xpress PE shall have exclusive rights to Products designed and manufactured for the unique needs of Buyer, to Buyer’s specifications or requirements or to military specifications (“Custom Product”). Xpress PE shall retain title to and possession of designs, masks and database tapes, engineering work and special materials. Individual segments or parts of Custom Product designs are the property of Xpress PE and may be used by Xpress PE in other designs and may not be used by Buyer except as a part of Custom Product designed and manufactured by Xpress PE. Prices and/or schedules for Custom Products are subject to change by Xpress PE if any specifications are revised or supplemented or there are unforeseen difficulties with the design.
Where the Products have been manufactured or constructed according to designs or configurations specified or supplied by Buyer, Buyer represents and warrants to Xpress PE that the Products as so designed or configured do not offend any patent right, copyright, design right or any other right of any third party and will be fit for the purpose for which they are designed or configured and that Buyer has or will have satisfied itself that the Products are designed, constructed and operational so as to be safe and without risk to the health or safety of workmen or others using or coming into the proximity of the same. Buyer shall indemnify Xpress PE against all actions, suits, claims, demands, charges, costs and expenses which Xpress PE may suffer or incur in connection with any claim by any third party alleging facts which if established would indicate a breach of the representation and warranties on the part of Buyer contained in this Condition.
8. Rescheduling and cancellation
No order, Agreement or any part thereof may be rescheduled or cancelled without Xpress PE’s prior written consent.
9. Force majeure
Xpress PE shall not be liable for any failure or delay in performance if
(i) such failure or delay results from the fact that Xpress PE’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or
(ii) such failure or delay does not result from its fault; or
(iii) such failure or delay is caused by Force Majeure as defined below or by law.
In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Xpress PE being responsible or liable to Buyer for any damage resulting therefrom.
The expression "Force Majeure" shall mean and include any circumstances or occurrences beyond Xpress PE’s reasonable control - whether or not foreseeable at the time of the Offer, Confirmation or Agreement – as a result of which Xpress PE cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Xpress PE to extend for a period of three (3) consecutive months), Xpress PE shall be entitled to cancel all or any part of the Agreement without any liability of Xpress PE towards Buyer. In the event Xpress PE’s production is curtailed, for any reason, Xpress PE shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Xpress PE’s Offer, Confirmation or Agreement, as the case may be.
10. Warranty and liability
(a) Xpress only warrants to the Buyer that the products shall be free from defects in material and workmanship, under normal use and service, at the time of delivery and for a period of 12 months thereafter, unless stated otherwise in Xpress' price list, order confirmation, invoice, brochures, website, or in the separate documentation which is delivered with every individual product. Any modification in Xpress' warranty will take effect forthwith.
(b) The Buyer shall not offer any manufacturer’s warranty, nor make any representations regarding the products without prior authorization in writing of Xpress that the Buyer is an authorized reseller of Xpress products. Authorized resellers of Xpress products shall not offer any manufacturer’s warranty, nor make any representations regarding the products in addition to or different from those contained in Xpress' warranty.
(c) Xpress will, at its discretion, either replace any product Xpress determine was defective at the time of delivery, or credit the Buyer with the value of the product. Defective products will be kept available for inspection by Xpress until a credit note has been issued. At Xpress' request, the defective products shall be returned to Xpress. Any products returned to Xpress shall become its property. The costs of transportation shall be borne by the Buyer. This amount will be deducted in the next invoice to the Buyer, if any, or by separate credit note.
(d) To the extent permitted under applicable law, the warranties set forth in this Article (a) are exclusive and in lieu of any and all other warranties, conditions, undertakings or other terms express or implied (whether by statute, common law, collaterally or otherwise) with respect to the delivery of the products, the non-delivery of the products, and/or the delivery of inferior products, including but not limited to implied terms of satisfactory quality, correspondence with description and fitness for particular purpose, merchantability or absence of hidden defects.
(e) Xpress PE’s Products are not designed, authorized or warranted to be suitable for use in medical, military, air craft, space or life support equipment nor in application where failure or malfunction of a Xpress PE’s Product can reasonably be expected to result in a personal injury, death or severe property or environmental damage. Inclusion and /or use of Xpress PE’s Products in such equipment or applications, without prior authorization in writing of Xpress PE, is not permitted and for Buyer’s own risk. Buyer agrees to fully indemnify Xpress PE for any damages resulting from such inclusion or use.
(f) Warranty claims shall not be entertained, where:
i) Xpress has not been notified in writing by the Buyer about the inferiority of the products delivered within eight days after establishing this fact, unless Xpress has agreed in writing with the Buyer to send Xpress reports at regular predefined intervals; and/or
ii) the products have been used in a way which is not mentioned in the directions for using the products; and/or
iii) the products have been repaired or there has been an attempt to repair the products by anyone other than one of Xpress authorised representatives; and/or
iv) the damage or defect is the result of an extraneous cause or has been caused by the fact that the products are subject to obvious normal wear and tear; and/or
v) the total price for any products has not been paid by due date for payment.
(g) Limitation of warranties.
i) Xpress' liability for any breach of Xpress' warranty is limited as set forth in Xpress warranty.
ii) In no event shall Xpress' liability towards the Buyer in contract arising from or relating to a breach of Xpress' warranty, including without limitation any and all claims combined, exceed the price the Buyer paid for the specific products giving rise to the alleged liability. In no event will Xpress be liable for the costs of procurement of substitute goods by the Buyer, the Buyers of the latter or any other persons or entity.
iii) In no event shall Xpress' liability towards the Buyer in tort (including negligence or breach of statutory duty), misrepresentation or otherwise exceed the price the Buyer paid for the specific products giving rise to the alleged liability.
iv) Without limiting the remaining provisions of this Article (g), Xpress shall not be liable for any loss, damages and/or expenses that occur as a direct or indirect result of:
1. fraud, gross negligence and malicious intent of personnel and third parties that Xpress make use of; and/or
2. a defect in the products supplied, if, on the basis of the scientific and technical knowledge at the moment upon which Xpress released the products, it was not reasonably possible to discover the existence of the defect; and/or
3. violation of patents, licences or other rights of third parties as a result of use by or on account of the data given by the Buyer; and/or
4. damages that may result from packing, invoicing or shipping documents not being in accordance with the requirements of the country to which shipment is made or the products will be transported.
v) With observation of mandatory law, under no circumstances shall Xpress have any obligation or liability to the Buyer or any third party for loss of profits, loss of business, depletion of goodwill or otherwise, and/or loss or use or for any consequential, incidental, indirect or contingent damages whatsoever, even if Xpress has been advised of the possibility thereof, arising out or in connection with the sale, delivery, use, repair or performance of any product that Xpress or its corporate affiliate delivered to the Buyer or third parties (whether for loss of profit, loss of business, depletion of goodwill or otherwise). The Buyer is bound to indemnify Xpress against claims of third parties as a result of any loss, damage or expenses occurred in connection with products delivered by us or its corporate affiliate, unless there is a matter of product liability.
vi) Without limiting the remaining provisions of this Article (g), Xpress accepts liability for direct loss, direct damages and direct expenses that occur as a direct result of fraud, gross negligence and malicious intent by a member of its Board of Directors, mentioned in the extract of the Commercial Register of the competent Chamber of Commerce and Industry.
vii) The Buyer shall be bound to indemnify Xpress against claims of third parties as a result of any loss, damage or expenses occurred in connection with products delivered by Xpress, unless there is a matter of product liability.
(h) The time within which the Buyer may commence legal proceedings against Xpress for a breach of any order shall be 180 days from the date of such breach at the latest. This also applies for counter claims of the Buyer in a pending litigation which has been initiated by Xpress.
11. Intellectual property rights indemnity
a) Xpress PE, at its sole expense, shall:
(i) defend any legal proceeding brought by a third party against Buyer to the extent that the proceeding includes a claim that any Product, excluding any software that is either (1) licensed under Open License Terms (as defined in Section 3 of these Terms and Conditions), (2) provided by Buyer or any of its designees to Xpress PE, (3) modified by Buyer or any third party, other than at Xpress PE request or (4) that is not embedded in a Product by Xpress PE (hereinafter collectively referred to as “Excluded Software”), as furnished by Xpress PE under an Agreement directly infringes the claimant’s patent, copyright, trademark, or trade secret; and
(ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement.
(b) Xpress PE shall have no obligation or liability to Buyer under Section (a)
(1) if Xpress PE is not:
(i) promptly notified in writing of any such claim;
(ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and
(iii) given full reasonable assistance and cooperation by Buyer in such investigation, preparation, settlement and defense;
(2) if the claim is made after a period of two (2) years from the date of delivery of the Product;
(3) to the extent that any such claim arises from:
(i) modification of the Product if the claim of infringement would have been avoided by use of the unmodified Product;
(ii) design, specifications or instructions furnished by Buyer; or
(iii) the combination of the Product with any other product, service or technology; or
(iv) the use of the Product or any part thereof in the practise of a process if Buyer does not incorporate the Product into a device of which the end-user is a consumer;
(4) to the extent the claim is based directly or indirectly upon the quantity or value of products manufactured by means of the Product or upon the frequency of use or the amount of use of the Product irrespective of whether such claim alleges that the Product as such, or its use, infringes or contributes to the infringement of any intellectual property rights of the claimant ;
(5) for unauthorized use or distribution of the Product or use beyond the specifications of the Product;
(6) to the extent any such claim arises from Buyer’s manufacture, use, sale, offer for sale, importation or other disposition or promotion of the Product after Xpress PE’s notice to Buyer that Buyer should cease any such activity, provided such notice shall only be given if the Product is, or in Xpress PE’s opinion is likely to become, the subject of such a claim of infringement; or
(7) for any costs or expenses incurred by Buyer without Xpress PE’s prior written consent; or
(8) to the extent the claim is based on any prototypes, custom products, beta testing Products, samples of newly developed Products, or Excluded Software;
(9) to the extent any such claim arises from any infringement or alleged infringement of third party’s intellectual property rights covering a standard set by a standard setting body and/or agreed between at least two companies,
(10) for infringement of any third party’s intellectual property rights covering the manufacture, testing or application of any assembly, circuit, combination, method or process in which the Product may have been used, or
(11) for infringement of any third party’s intellectual property rights with respect to which Xpress PE or any of its Affiliates has informed Buyer or has published (in a datasheet or other specifications concerning the Product or elsewhere) a statement that a separate license has to be obtained and/or that no implied license is granted.
Buyer shall indemnify Xpress PE against and hold Xpress PE harmless from any damages or costs arising from or connected with such claims of infringements and shall reimburse all costs incurred by Xpress PE in defending any claim, demand, suit or proceeding for such infringement, provided Xpress PE gives Buyer prompt notice in writing of any such suit or proceeding for infringement.
(c) If any Product is, or in Xpress PE’s opinion is likely to become, the subject of a claim of infringement as referred to under Section 11 (a) above, Xpress PE shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell the Product; (ii) replace or modify the Product in such a way as to make the modified Product non-infringing; or (iii) terminate any Agreement to the extent related to such Product. In the event of any such termination, Xpress PE shall repurchase all Products in Buyer’s possession at the time of such termination, which are then subject to the claimant’s continuing claim of infringement.
(d) Subject to the exclusions and limitations set forth in Section 10 of the Terms and Conditions, the foregoing states Xpress PE’s entire liability and obligation to Buyer and Buyer’s sole remedy with respect to any actual or alleged infringement of any intellectual property rights of any kind.
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Xpress PE and/or its Affiliates is the confidential information of Xpress PE and/or its Affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
13. Compliance with laws
Each party hereto represents that it its duly authorized to enter into the Agreement and represents that with respect to its performance hereunder, it will comply with all applicable federal, state and local laws, including, but not limited to those pertaining to U.S. Export Administration or the export or import controls or restrictions of other applicable jurisdictions.
If the delivery of Products or services under the Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Xpress PE may suspend its obligations and Buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Xpress PE may even terminate the Agreement, without incurring any liability towards Buyer.
Furthermore, if an end-user statement is required, Xpress PE shall inform Buyer immediately thereof and Buyer shall provide Xpress PE with such document upon Xpress PE’s first written request; if an import license is required, Buyer shall inform Xpress PE immediately thereof and Buyer shall provide Xpress PE with such document as soon as it is available.
By accepting Xpress PE’s Offer, entering into any Agreement and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
14. Assignment and setoff
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of Xpress PE. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer and Xpress PE may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
15. Governing law and forum
All Offers, Confirmations and Agreements are governed by and construed in accordance with the laws of the Netherlands. All disputes arising out of or in connection with any Offer, Confirmation or Agreement shall first be attempted by Buyer and Xpress PE to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. All disputes that are not so settled within a period of thirty (30) days from the date the relevant dispute first arose may be submitted to the courts of ‘s-Hertogenbosch, The Netherlands, provided that Xpress PE shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Products shall not apply to any Offer, Confirmation or Agreement. Nothing in this Section 15 shall be construed or interpreted as a limitation on either Xpress PE’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
16. Breach and termination
Without prejudice to any rights or remedies Xpress PE may have under the Terms and Conditions and/or the Agreement or at law, Xpress PE may, by written notice to Buyer, terminate with immediate effect the Agreement, or any part thereof, without any liability whatsoever, if:
(i) Buyer fails to make payment for any Products to Xpress PE when due;
(ii) Buyer fails to accept conforming Products supplied hereunder;
(iii) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or
(iv) Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.
Upon occurrence of any of the events referred to under (i) through (iv) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable. In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration, which shall include without limitation Sections 9, 10, 11 and 12, shall survive.
17. Product and production changes
Xpress PE reserves the right to make at any time Product and/or production changes. In such event Xpress PE represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.
18. Discontinuation of product
Xpress PE reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Xpress PE sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued ("Discontinued Product"), Xpress PE shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Xpress PE’s product discontinuation process and general information related thereto as published on Xpress PE’s website.
In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement or from any related document or by law.
All notices and communications to be given under this Agreement shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreements.
22. Attorneys' fees
Should a dispute arise from the subject matter of any Offer, Confirmation or Agreement, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys’ fees and expenses incurred.
23. Relationship of parties
The Parties hereto intend to establish a relationship of buyer and Xpress PE and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.