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1. GeneralTo the extent not otherwise agreed in writing, these general terms and conditions of sale (“General Terms”) shall apply to all Contracts, offers and order confirmations regarding Vacon’s sale of its Products to any Purchaser of such Products. 2. DefinitionsThe following definitions shall apply to these General Terms: (i) “Confidential Information” shall mean any technological and technical know-how, inventions, product data, processes, designs, drawings, specifications, economic information and any other information, which is marked or notified as being confidential or should, in the exercise of reasonable judgment under the circumstances, be considered as confidential. (ii) “Contract” shall mean any contract or agreement between the Parties regarding the sale and purchase of Products. (iii) “High Speed Product” shall mean any Product that is capable of controlling motor operating at the frequency rate of 600 Hz or above. (iv) “IPR” shall mean any patent, utility model, design patent, design, software, copyright, trademark, know-how, trade secrets and any other intellectual property right. (v) “Party” shall mean Vacon or the Purchaser separately and “Parties” shall mean Vacon and the Purchaser jointly. (vi) “Products” shall mean frequency converters, power converters and inverters, their spare and/or replacement parts as well as optional devices and accessories and other products sold and delivered by Vacon. (vii) “Purchaser” shall mean any entity purchasing Products from Vacon. (viii) “Service Provider” shall mean any Subsidiary of Vacon or an independent service provider authorized by Vacon to provide services relating to the Products on behalf of Vacon. (ix) “Subsidiary” shall mean any company that is directly or indirectly controlled by Vacon Plc. Control means the power to direct management and policies through ownership, voting rights, contract or otherwise. (x) “Third Party Components” shall mean third party software and/or components which Vacon has licensed or otherwise sourced from a third party to be used as part of Products. (xi) “Vacon” shall mean Vacon Plc or its Subsidiary selling the Product to the Purchaser. 3. Validity of Quotations and Formation of Contract3.1 Written quotations by Vacon are valid for thirty (30) days unless otherwise stated in the quotation or terminated earlier by written notice. Oral quotations, unless accepted by the Purchaser, expire at the end of the day they are made. 3.2 Each Contract shall be concluded by a separate written agreement between the Parties or by a written confirmation by Vacon of the Purchaser’s order. In the case of accepting an oral quotation, a written Contract must be executed within thirty (30) days from the acceptance, otherwise the price and delivery terms may be subject to re-negotiation. 3.3 The Purchaser’s orders are binding when received by Vacon. Vacon’s confirmation of the Purchaser’s order is conditional on the Purchaser’s acceptance of these General Terms. Acceptance of delivery of Products without prior objection to these General Terms shall constitute such acceptance. 4. Termination and Cancellation4.1 Any order by the Purchaser may be terminated by the Purchaser only by written notice and upon payment of reasonable termination charges, including but not limited to all costs incurred by Vacon until the termination notice is received by Vacon and any and all profit loss sustained by Vacon as a result of such termination. 4.2 Vacon shall have the right to cancel any confirmed order and/or Contract at any time by written notice with immediate effect if the Purchaser (i) breaches any provisions of the Contract and fails to correct such breach within fourteen (14) days from the notice by Vacon demanding such correction, or (ii) enters into any proceeding under law for the relief of debtors, is declared bankrupt, fails to pay its invoices when due or otherwise becomes insolvent. 5. Delivery Term and Transfer of Title5.1 The Products will be delivered, and are priced, Ex Works (Incoterms, the latest effective version) at Vacon’s production site, unless otherwise agreed in the Contract.5.2 Title to the Products will pass to the Purchaser when the sales price has been paid in full to Vacon.6. Prices and Payment Term6.1 The prices for Products are as agreed in the Contract and are exclusive of VAT and other similar taxes and public charges. Unless otherwise agreed in the Contract, all prices are subject to change without notice. In the event of a price change, the effective date of the change will be the date of the new price or price list, letter or electronic notification. New pricing will be applied in all quotations made by Vacon and in orders confirmed by Vacon after such effective date. 6.2 Unless otherwise agreed, the Products will be invoiced on the date of shipment. Payments shall be made within thirty (30) days from the date of Vacon’s invoice.6.3 If the Purchaser fails to make any payment in due time, Vacon may, at its discretion, consider the Contract breached, claim all unpaid amounts, claim interest for delayed payment(s) and cancel or suspend any pending deliveries to the Purchaser. Unless otherwise agreed, the delay interest is fifteen per cent (15 %) per annum, however, not more than the highest permitted interest rate under the mandatory provisions of the applicable law.7. Warranty7.1 Vacon hereby warrants that the Products
(i) will comply with the specifications jointly and specifically agreed to by the Parties, or, in the absence of such jointly and specifically agreed specifications, Vacon’s standard specifications in effect at the time of manufacture, and that (ii) the Products, as originally delivered by Vacon, are free from defects in material and workmanship.7.2 Vacon shall not be responsible for any defects due to the Purchaser’s negligence or misuse, modification or rework, combination, incorrect installation, commissioning or maintenance, unauthorized dismantling, abnormal or exceptional working, installation, commissioning or operation conditions, or the Purchaser’s failure to adhere to Vacon’s instructions and specifications. Neither shall Vacon be responsible for (i) normal wear and tear, (ii) for defects arising from the use of spare parts other than those approved by Vacon, or (iii) for damages arising from the Purchaser’s failure to ensure information security in the environment where the Products are used. 7.3 The warranty period is • eighteen (18) months from the date of shipment of the Product from Vacon; or twelve (12) months from the commissioning thereof; whichever occurs first; or • such longer warranty period as required by the mandatory provisions of the applicable law; or • thirty-six (36) months from date of shipment from Vacon; or twenty-four (24) months from the commissioning thereof; whichever occurs first for Vacon X-Series.7.4 The warranty period for repaired or replaced Product or its part shall be equivalent to the remaining warranty period of the originally delivered Product or three (3) months from the repair or replacement of such Product or its part, whichever is longer.7.5 Provided that the Purchaser has notified in writing Vacon (or its Service Provider as provided for in section 7.6 below) of the defect within five (5) working days after discovery of the defect and within the above warranty period, Vacon shall, at its discretion, (i) either repair the defective Product, (ii) replace the defective Product by an equivalent non-defective Product, or (iii) refund the purchase price of the defective Products. In case Vacon decides to replace the defective Products and requests the return of such defective Products, the Purchaser shall refrain from any actions preventing or interfering with a proper analysis of the cause of the defect, store the defective Products in proper conditions and deliver the defective Products to Vacon (or its Service Provider, as the case may be) within five (5) working days from Vacon’s request. Vacon shall reimburse the transportation costs arising from the return of defective Products under the warranty herein provided that the forwarding agent recommended by Vacon has been used. Vacon is not responsible for any additional costs and expenses caused by the dismantling, installation or commissioning of a repaired or replaced Product, travelling, accommodation, daily allowances or time used for travelling by the authorized service personnel.7.6 All communication relating to claims shall be between the Purchaser and the Service Provider and possible returns of defective Products shall be made by the Purchaser to such Service Provider. 7.7 The warranties above and in section 9.2 are exclusive and are in lieu of all other warranties, whether written or oral, implied or statutory. VACON AND THE PURCHASER HEREBY WAIVE ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR USE. Vacon shall not be liable for any other activity and/or cost than those set forth in section 7.5 above. 8. Purchaser’s Warranties8.1 The Purchaser hereby represents and warrants that if the Contract covers any High Speed Products, the Purchaser shall comply with all applicable provisions (if any) of the Council Regulations (EC) setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, and other applicable control regime as valid from time to time. 8.2 The Purchaser further represents and warrants that any Products shall not be used, nor transferred to third parties to be applied, in connection with a nuclear facility nor in production, development, handling, operation, maintenance, storage, detection, identification or dissemination chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons. 8.3 Vacon retains the right to redeem the Products (without any compensation to the Purchaser) in case the information provided by the Purchaser or otherwise regarding the end user of the Product seems, at the sole discretion of Vacon, to be false.9. Intellectual Property Rights9.1 The sale and delivery of any Products to the Purchaser shall not transfer, confer or grant to the Purchaser any IPR to the Products or related documents, save the right of normal use and/or sale of Product and related documents in the Purchaser’s ordinary business. 9.2 Vacon hereby warrants that the Products, as delivered, do not infringe upon any IPR of third parties in the country of delivery. In case of any infringement, or anticipated infringement, the Purchaser shall immediately notify Vacon in writing thereof, empower Vacon to defend the case and give Vacon any support requested. Vacon may, at its sole discretion, either (i) replace the infringing Product with a non-infringing Product that materially corresponds to the agreed specification of the relevant Product, (ii) acquire to the Purchaser a royalty-free license to use the Product, or (iii) redeem the infringing Product and return the corresponding sales price. The warranty and remedies above are the sole remedies available to the Purchaser in case of a possible infringement of third party IPRs. 10. Third Party ComponentsVacon’s delivery may contain Third Party Components. Vacon shall be entitled, at its sole discretion and at any time, to add, remove or replace any Third Party Components in any Product. All IPRs to the Third Party Components shall belong to such third party. Vacon or the third party will grant the Purchaser a limited, non-exclusive and non-transferable license to use the Third Party Component solely in connection with the use of Product and subject to such third party’s license and other delivery terms and conditions. Vacon neither assumes any liability nor gives any warranty of any kind for the Third Party Components and the Purchaser shall entirely satisfy itself with the warranty and indemnity, if any, granted by such Third Party Component supplier. 11. Force MajeureVacon shall not be liable to the Purchaser for failing to fulfill its obligations as a result of circumstances beyond its reasonable control, including without limitation fire, explosion, accident, strike, lockout, flood, drought, embargo, war (whether declared or not), riot, natural disasters or acts of the public enemy, action of any governmental authority, general shortage of material or transportation, or the delay or non-performance of a sub-contractor due to the above reasons.12. Confidentiality Each Party shall, during the term of the Contract and thereafter, hold in confidence and not disclose to any third party any Confidential Information which has been disclosed to it by the other Party in connection with the Contract or otherwise learned by it in connection with the delivery of the Products. The Parties shall not use any Confidential Information for any other purpose than for the proper performance of the Contract and the delivery of the Products. The above obligations of confidentiality and non-use shall not apply to Confidential Information which the receiving Party by written records demonstrate (i) was in its possession prior to the first receipt thereof from the disclosing Party, and/or (ii) which becomes a matter of public knowledge without a breach of the confidentiality obligation hereunder, and/or (iii) which is obtained from a third party under circumstances permitting its disclosure to others. 13. Limitation of LiabilityEach Party’s maximum liability to the other for damages arising from the sale and purchase of Products shall never exceed the net invoiced value of the relevant Product. In no event shall either Party be liable to the other for loss of production, loss of profits, business, revenue, data or goodwill, cost of capital, losses arising from plant shut down, labor charges or other consequential, incidental, indirect, special or punitive damages. The aforesaid limitations of liability shall not, however, apply in cases where damages are caused by (i) willful misconduct or gross negligence, (ii) culpable injury to life, body or health, (iii) defects which have maliciously been concealed or whose absence has been specifically guaranteed or (iv) personal injury or damages to property when there is strict liability under the applicable mandatory product liability laws for such damages. 14. SeverabilityThe provisions of these General Terms are intended to be severable. If any provision or part thereof is held invalid, then the rest of the General Terms shall remain in full force and effect.15. Governing Law and Dispute Resolution15.1 These General Terms as well as any other terms of the Contract shall be governed by the laws of the country/state in which the contracting Vacon entity is located, without, however, giving effect to the rules on conflict of laws within such jurisdiction. The Vienna (UN) Convention on Contracts for the International Sale of Goods shall not apply.15.2 Any dispute, controversy or claim arising out of or relating to the Contract, or the breach, termination or validity thereof shall be finally settled by arbitration. The arbitration shall be governed by (i) the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) for disputes governed by U.S. law, (ii) the Arbitration Rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) for disputes governed by Chinese law, or (iii) by the Rules of Arbitration of the International Chamber of Commerce (“ICC”) for disputes governed by any other law than those mentioned above. The place of arbitration shall be Vacon’s domicile, and the arbitration shall be conducted in the English language. Notwithstanding the foregoing, (i) Vacon shall, however, be entitled to lodge claims concerning the collection of outstanding debts in any court having jurisdiction over the Purchaser; and (ii) the parties agree that nothing herein shall be construed to prevent parties from seeking injunctive relief for immediate and irreparable harm in such circumstances where such equitable relief is necessitated and no immediate adequate remedy at law is available.