General Terms and Conditions

1. GENERAL
a. These terms and conditions (“Terms and Conditions”) together with the written quotation (“Quotation”) shall govern the sale and provision by SGX Europe Sp. z o.o. (“SGX Europe”) of any goods and any related services (“Products”) to the Customer and shall prevail over and apply in precedence to any other document, term or condition. These terms and conditions form a part of all Quotations for Products issued by SGX Europe, and a contract shall be executed by the Customer upon its placing an order for Products (“Order”) which shall equal acceptance of these Terms and Conditions (these Terms and Conditions and the Quotation and Order shall form jointly the “Contract”). Any other additional or differing terms and conditions proposed by the Customer concerning any Products shall be deemed proposals for modification of these Terms and Conditions, but shall be deemed objected to and of no effect unless expressly agreed-to in writing by an authorized representative of SGX Europe. No Contract shall come into existence unless and until a written acknowledgement of Order is issued by SGX Europe. Where there is conflict between any provisions of these Terms and Conditions and a Quotation, the provisions in the Quotation shall prevail.
b. Products are only available and prices are only valid as stated in a Quotation. Unless otherwise stated, a Quotation is valid for 30 (thirty) days from its date unless it is withdrawn or extended in writing. Notwithstanding the foregoing, SGX Europe shall have the right, at any time, to increase the price of any Product with respect to which SGX Europe’s cost of raw materials and purchased components included in the Product increases by 5% or more. Any such price increase shall become effective upon written notice to the Customer accompanied by a statement from SGX Europe confirming that such costs have increased by 5% or more.
c. In the event that the Customer requests amendments to the description of Products in the Quotation issued by SGX Europe, such requested amendments shall only be accepted if SGX Europe, in SGX Europe’s sole discretion, provides the Customer an order acknowledgement endorsed “Amended”. The quantity, quality and description of the Products shall be as set out in the Quotation or Amended Quotation, if any, issued by SGX Europe.
d. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
e. No waiver by SGX Europe of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
f. SGX Europe reserves the right to apply an administration charge for small value or small quantity orders. Further, where the Customer does not indicate its transport in the Order, a transport charge shall be applied to cover the costs of delivery by courier or air transport and courier, based on calculations by SGX Europe which shall be added to the invoice or pro forma invoice.

2. PAYMENT
a. Unless the Parties agree otherwise in writing, payment shall be in the currency specified in the Quotation and, unless otherwise agreed, shall be due and payable in full within 14 (fourteen) days of the date of the invoice or in advance under a pro forma invoice. SGX Europe shall send the invoice to the Customer together with the Products on the date of Product delivery (or, if the Products are services, upon commencement of those services), or, if SGX Europe is unable by reason of instructions or lack of instructions from the Customer to deliver the Products, SGX Europe shall invoice the Customer upon the intended date of delivery. Upon subsequent delivery of the delayed Products, SGX Europe shall invoice the Customer for storage in accordance with Clause 3c.
b. If SGX Europe at any time determines, in its sole and absolute discretion, that the Customer is not trustworthy, including in financial terms, or may be unable to pay, in full and in a timely manner, all amounts due to SGX Europe, SGX Europe shall have the right to require payment in full, before delivery of any Product.
c. In the event the Customer orders quantities of Products with associated price breaks and fails to take these quantities within the agreed timescales for delivery then SGX Europe reserves the right to amend the prices according to the actual quantity of Products delivered to the Customer.
d. The Customer is not entitled to withhold or set off any sums due under invoices received from SGX Europe.
e. Where the Customer challenges the amount under an invoice, the Customer shall notify SGX Europe thereof within 15 (fifteen) days of the date of invoice. If the Customer’s dispute is held valid, SGX Europe shall credit the Customer the disputed amount in the next invoice to the Customer.
f. If the Customer fails to pay any sum due to SGX Europe by its due date, the Customer shall pay to SGX Europe, in addition to such sum or sums due, interest thereon at the prevailing statutory rate on late payment, calculated on a daily basis together with any additional costs and expenses incurred by SGX Europe and SGX Europe may at its sole discretion and without liability postpone delivery or cancel all or part of the Contract or any other contract between the Customer and SGX Europe without prejudice to any other right or remedy which SGX Europe may have against the Customer in respect of such default.
g. All payments due under the Contract shall be paid in gross amounts by the Customer, in particular the Customer is obliged to pay all taxes and customs duties.
h. If payments received from the Customer are not stated to a particular invoice SGX Europe may apply such payments to any outstanding invoice.

3. DELIVERY AND TRANSFER OF RISK OF LOSS
a. The times, places and terms of delivery are as specified in the Quotation. Delivery shall be Ex Works SGX Europe Katowice Incoterms 2010, unless otherwise specified. Quoted delivery times shall be regarded as estimates. SGX Europe may ship and deliver the Products in instalments and no partial shipment or delivery shall constitute a breach by SGX Europe. Risk against loss or damage to all or any of the Products shall transfer from SGX Europe to the Customer upon delivery in accordance with the specified Incoterm.
b. Delivery will be subject to receipt by SGX Europe of any necessary export licences, documentation or requirements. In the event these cannot be obtained by SGX Europe, SGX Europe will be entitled to terminate the Contract with immediate effect without any liability.
c. If the Customer fails to take delivery of the Products or any part thereof on the due date or fails to provide instructions or documents required to enable the Products to be delivered on the due date, SGX Europe may, on giving written notice to the Customer, store or arrange for the storage of the Products, and on the service of such notice: (i) risk in the Products shall pass to the Customer; (ii) the delivery of the Products shall be deemed to have taken place; and (iii) the Customer shall pay to SGX Europe all costs and expenses including storage and insurance charges arising from its failure.

4. INSPECTION AND ACCEPTANCE
a. The Customer shall inspect the Products upon delivery and may reject any Products that do not conform to the Contract, provided written notification of such rejection is submitted to SGX Europe, within 15 (fifteen) days of delivery. Products not notified as rejected within 15 (fifteen) days of delivery will be deemed to be accepted.

5. TRANSFER OF TITLE
a. Title in Products will transfer from SGX Europe to the Customer only upon receipt by SGX Europe of payment in full for the Products. SGX Europe will be entitled to recover payment of the Products notwithstanding that title in any of the Products has not passed from SGX Europe.
b. Until such time as the title in the Products passes to the Customer: (i) the Customer must not destroy, deface or obscure any identifying mark or packaging on or relating to the Products and must maintain the Products in a satisfactory condition insured for the benefit of SGX for their full price against all risks; and (ii) SGX Europe may, without prejudice to any other rights or remedies available to it, repossess any or all of the Products. For the purpose of so taking possession, the Customer hereby grants SGX Europe irrevocable authority without notice to enter the Customer’s premises for the purpose of collecting and removing the Products.

6. WARRANTY
a. SGX Europe warrants the Products in accordance with the conditions of SGX Europe Standard Warranty Leaflet. All other warranties are excluded to the extent permitted by law.
b. The Customer warrants that it will be responsible for (and will finance the costs of) the collection, treatment, recovery and environmentally sound disposal of all product waste at its end-of-life for any product supplied by SGX Europe, in accordance with all applicable legislation.

7. LIMITATION OF LIABILITY
a. Subject to Clause 7(c), SGX Europe shall not be liable to the Customer by reason of any breach of Contract or of statutory duty or by reason of tort (including, but not limited to, negligence of any degree) for any loss of profit, loss of revenue, loss of use, loss of production or opportunity, loss of contracts or for any financial or economic loss or for any consequential, incidental or indirect loss, howsoever arising, that may be suffered by the Customer or by any third party.
b. Subject to Clause 7(c), in no event shall SGX Europe’s total liability under or in connection with the Contract exceed 15% of the Contract price, in full and final settlement of all Customer claims arising hereunder, and the Customer and SGX Europe expressly agree that this limitation is an adequate remedy in any such case.
c. No provision of the Contract shall limit or exclude the liability of SGX Europe for wilful damage done by SGX Europe and for personal injury, including death or bodily harm, caused wilfully by SGX Europe including in relation to a false statement made by SGX Europe.

8. MODIFICATIONS
a. SGX Europe reserves the right, without notice to or consent by the Customer, to make minor modifications to Product specifications, design or materials as SGX Europe deems necessary. No alteration or modification to a Product which affects the price to be paid or time of delivery shall be made without the prior agreement of the Customer, which shall not be unreasonably withheld.

9. ASSIGNMENT
a. The Customer shall not, without SGX Europe’s prior written consent, assign or pass any of its rights or obligations under the Contract to any third party, including whether in connection with any change of control, the sale, transfer, merger, assignment or other reorganization affecting Customer to any degree including the Customer’s capital, whether by way of merger, sale, consolidation, or otherwise. Any attempted assignment in violation of this provision shall be void, and shall be considered as a breach of Contract by the Customer subject to the provisions of Clause 14a. SGX Europe may assign any of its rights and obligations under the Contract.

10. FORCE MAJEURE AND EXTENSION OF TIME
a. SGX Europe shall not be liable for any failure to perform its obligations that are due to any circumstances beyond its reasonable control (“Force Majeure Event”) including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or any inability to obtain any necessary import or export licences or other consents of any government. If any Force Majeure Event occurs SGX Europe shall automatically be entitled to an extension of time for such period as is necessary to perform its obligations under the Contract and the Customer shall have no claims whatever against SGX Europe in respect of such delay in performance.

11. CONFIDENTIAL INFORMATION
a. The Customer agrees that it has not provided SGX Europe with any confidential information and that SGX Europe has no confidentiality obligation to the Customer. No obligations of confidentiality will be accepted by SGX Europe other than in pursuance of a formal written agreement.
b. The Customer shall keep confidential all confidential information provided to the Customer by SGX Europe.

12. INTELLECTUAL PROPERTY
a. All intellectual property rights (including invention patents, protection rights to trademarks or industrial designs or copyright to any design/technical documentation) relating to Products or parts thereof supplied by SGX Europe in the performance of the Contract shall remain SGX Europe’s absolute property. The Customer shall not reproduce or disclose SGX Europe’s designs, drawings, specifications or information to any third party or copy or reverse engineer (or cause or enable any third party to copy or reverse engineer) any of the Products.

13. INDEMNITY
a. SGX Europe will indemnify the Customer against any claim by third parties that the ordinary use or sale of the Products or part thereof supplied by SGX Europe to the Customer infringes the intellectual property rights of the third party, and against all reasonable costs and damages which the Customer incurs in any resultant action, provided always that this indemnity shall not apply to any infringement:
(i) which is due to SGX Europe having followed a design or instruction furnished or given by the Customer, or to the use of the Products or part thereof in a manner or for a purpose or in a country not specified or disclosed to SGX Europe, or
(ii) which is due to the use of the Products or parts thereof together with or in combination with any other article, material or apparatus, or
(iii) where SGX Europe procures for the Customer the right to continue to use the Products or parts thereof or SGX has modified or replaced the Products or parts thereof.
b. The indemnity in Clause 13a is conditional upon:
(i) the Customer giving to SGX Europe the earliest possible notice in writing of any claim being made or action being threatened or brought against the Customer;
(ii) the Customer permitting SGX Europe at its own expense to conduct any litigation that may ensue and/or all negotiations for a settlement of a claim; and
(iii) the Customer not making any admission which is or may be prejudicial to SGX Europe.
c. The indemnity in Clause 13a is given in lieu of any or all liabilities which SGX Europe might otherwise have in relation to any infringement or alleged infringement of any patent or other right.
d. The Customer shall indemnify SGX Europe regarding the use of designs or instructions furnished by the Customer to the same extent as SGX Europe’s indemnity in Clause 13a above.

14. TERMINATION
a. For cause: If: (i) the Customer commits any breach of its obligations; or makes any arrangement with its creditors or any other arrangement or situation which has a like effect including without limitation a change of company control, commits any act of bankruptcy or becomes insolvent; or (ii) SGX Europe has reasonable grounds to suspect the Customer has violated any applicable law or regulation, including, but not limited to anti-corruption laws; then SGX Europe may terminate, cancel or suspend its performance of the Contract or any other contract between the Customer and SGX Europe immediately, or postpone delivery of all or any part of the Products or all or any part of any other order placed by the Customer with SGX Europe. SGX Europe also may terminate the Contract, upon written notice to the Customer, if SGX Europe suffers any Force Majeure Event. In the event of a termination, it shall be treated as a Customer termination for convenience and the parties shall proceed in accordance with Clause 14c, except that SGX Europe shall retain any and all additional rights and remedies available under the Contract and at law which may include indemnification for liabilities incurred by SGX Europe arising from the Customer’s act or omission.
b. For SGX Europe’s convenience: SGX Europe may terminate any Contract on giving 90 (ninety) days’ notice to the Customer, and Customer shall remain liable for payment of: (i) the Contract price for all Product delivered to Customer prior to such termination and the actual cost incurred by SGX Europe, plus a mark-up of 12 percent (12%) of such cost, for partially completed Products and associated work-in-process which, upon payment, shall be delivered to Customer.
c. For Customer’s convenience: The Customer may cancel or terminate the Contract only with the prior written consent of SGX Europe and only upon such terms as SGX Europe, in its sole and absolute discretion, may agree. In the event of termination within 30 (thirty) days prior to the acknowledged delivery date the Customer will be liable to SGX Europe for the full Contract value terminated. In the event of termination outside one month but within 60 (sixty) days prior to the acknowledged delivery date the Customer’s liability will be the higher of, (i) the costs incurred by SGX Europe, including those incurred as a result of the termination, or (ii) 50% of the Contract price for the terminated Products. In the event of termination outside 60 (sixty) days prior to the acknowledged delivery date the Customer will be liable for all the costs incurred by SGX Europe as a result of the termination, including the work in process for all Products not previously accepted by Customer (Customer shall remain liable for the full Contract price of all Product delivered prior to termination).
d. For SGX Europe default: SGX Europe shall be liable for the Customer’s reasonable and demonstrable excess reprocurement costs up to the maximum liability detailed in Clause 7b for the terminated portion of the Contract, in full and final settlement of all claims arising hereunder. All other remedies by law are hereby expressly excluded.
e. SGX may exercise any of the rights herein without any liability and without prejudice to any other right or remedy to which SGX Europe may be entitled by operation of law or otherwise, including without limitation the right to recover SGX’s costs with respect to work in progress and incidental costs. In addition, if any Force Majeure Event occurs and SGX Europe terminates the Contract, SGX Europe shall be entitled to retain any deposit or other amount paid by the Customer as of the date on which notice of such termination is provided, it being the express intent of SGX Europe and the Customer that the Customer shall bear the risk of loss of its deposit or other amounts paid to SGX prior to delivery as a result of any Force Majeure Event.

15. AMENDMENTS
a. All changes, modifications and amendments to the Contract must be agreed by the parties in writing. In the event that Customer representatives provide any direction, guidance or advise of any nature that SGX Europe deems to constitute a change to the requirements of the Contract, SGX Europe shall notify the Customer and a written modification shall be made to the Contract prior to SGX Europe having any obligation to proceed.

16. INTERPRETATION
a. In the event of a conflict between the English version of these terms and conditions and the Polish version, the Polish version shall prevail.

17. LAW AND JURISDICTION
a. The Contract shall in all respects be governed and construed in accordance with the laws of Poland and any unresolved disputes shall be resolved in a binding manner by the state court having jurisdiction over the registered seat of SGX Europe.

 

SGX Europe SP. Z O.O. TERMS AND CONDITIONS OF PURCHASE

1. ACCEPTANCE

1.1 These terms and conditions (“Terms and Conditions”) shall apply to the purchase of all products (“Products”) and any related services (“Services”) by SGX Europe Sp. z o.o. (“SGX Europe”) from the supplier (“Supplier”). Unless the provisions of these Terms and Conditions stipulate otherwise, all provisions concerning the Products shall also apply to the Services.

1.2 These Terms and Conditions shall apply to all purchase orders for the Products (“Order”) and these Terms and Conditions shall be incorporated into the Order to the entire exclusion of all other terms and conditions.

1.3 SGX Europe will only be bound by the Order, if it is submitted by an authorised member of the SGX Europe purchasing function (“Buyer”). Any variation to the Order, including a variation to these Terms and Conditions, shall have no effect unless expressly agreed in writing by the Buyer.

1.4 Any of the following acts by the Supplier shall constitute acceptance of the Order and these Terms and Conditions: (i) signing and returning a copy of the Order; (ii) commencement of performance of the Order or informing SGX Europe, in any manner, of commencement of performance; (iii) delivery of any of the Products ordered or (iv) returning the Supplier’s own form of acknowledgement.

1.5 Any alteration of the Order or these Terms or Conditions contained in the Supplier’s acknowledgement form, or otherwise communicated by the Supplier in accepting the Order, shall be deemed to be a material alteration of the Order and it shall apply to the Order on condition of a prior express consent of the Buyer to the variation. Acceptance of the Products by SGX Europe will not constitute acceptance by SGX Europe of the Supplier’s terms and conditions. To the extent the Order is in any way deemed to be an acceptance of a quotation or other offer by the Supplier, any such acceptance is effective on condition of the consent of the Supplier to these Terms and Conditions of the Order.

1.6 In the event of conflict between any other language version of These Terms and Conditions and the Polish language version, the Polish language version will prevail.

2. PRICE AND DELIVERY.

2.1 The Supplier shall furnish the Products in accordance with the prices and delivery schedule stated on the face of the Order. The Supplier shall offer its lowest prices and best delivery dates. The Supplier warrants that the prices charged for the Products will be as low as the lowest prices charged by the Supplier to any customers purchasing similar Products in similar quantities.

2.2 Prices will not be increased for the duration of the Order. In particularly justified cases (e.g. in the case of a major change in currency exchange rates) SGX Europe shall have the right to request the Supplier to reduce the price or alter the Order during its performance, including also an Order for medium- and long-term supplies of Products.

2.3 All prices shall be gross prices and shall include all applicable taxes. Unless agreed otherwise by the Parties, no additional charges shall be added to the prices.

2.4. Where products are delivered in advance of the delivery date indicated for such Products in the Order, SGX Europe may return such Products to the Supplier or store them at the cost of the Supplier.

2.5 The Supplier undertakes to notify SGX Europe in writing without delay of any change in circumstances which may delay delivery. SGX Europe shall be entitled to cancel the Order and/or claim reimbursement for all losses and expenses suffered by SGX Europe in the event that; (i) the Supplier fails to deliver the Products in accordance with the terms of the Order; or (ii) the Supplier fails to make progress with the Order so as to jeopardise, in the opinion of SGX Europe, the purpose of the Order.

2.6 The Products shall be delivered to the SGX Europe nominated location, DDP (Incoterms 2000) unless otherwise specified on the Order. The Supplier shall bear all risk of loss or damage to the Products until delivery of the Products to the nominated address. All Products shall be packaged, marked, and otherwise prepared in accordance with good commercial practices to obtain lowest shipping rates and any instructions on the Order. The Products will be marked with SGX Europe’s Order Number and accompanied by paperwork that identifies the Order, the quantity and the description (including where appropriate weights and dimensions) of the Products.

2.7 Ownership of the Products shall pass to SGX Europe upon delivery to the nominated address, or upon payment, whichever is the earlier.

3. INVOICING

3.1 After each delivery of Products provided under the Order, the Supplier shall send an invoice showing any VAT separately, if due, referencing the SGX Europe’s Order number and Product items under the Order. The Supplier shall attach to the invoice (if applicable) a bill of lading or express receipt. Payment of the invoice shall not constitute acceptance of the Products and shall be subject to appropriate adjustment for failure of the Supplier to meet the requirements of the Order. SGX Europe may set off any amount owed by the Supplier or any of its affiliated companies to SGX Europe against any amount owed by Europe to the Supplier under the Order.

3.2 Unless the Order stipulates otherwise, SGX Europe shall pay the amount under a correct invoice issued by the Supplier in its gross amount, within 60 days from the date of delivery of the invoice.

4. DATA AND SOFTWARE

4.1 For data or materials other than computer software delivered pursuant to or in connection with the Order, the Supplier grants to SGX Europe, and all others acting on behalf of SGX Europe, a paid-up, non-exclusive, irrevocable worldwide license, including a right to sublicense to SGX Europe’s subcontractors, customers and their end-users, of all such data and materials, including copyrighted data, to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of SGX Europe for SGX Europe’s, its subcontractors, customers’ or their end-users’ use or performance.

4.2 For computer software delivered pursuant to or in connection with the Order, the Supplier grants to SGX Europe, a paid-up, non-exclusive, irrevocable worldwide license, including a right to sublicense to SGX Europe’s subcontractors, customers and their end-users, of all such computer software, including copyrighted or patented software, to reproduce, prepare derivative works, and perform publicly and display publicly, by or on behalf of SGX Europe for SGX Europe’s, its subcontractors, customers’ or their end-users’ own use or performance.

4.3 The price for the Product also includes the fee for granting the licence referred to in clause 4.1 and 4.2 above.

5. QUALITY AND INSPECTION

5.1 The Products shall be of the best available design, of the best quality, material and workmanship, be without fault and will comply with all relevant specifications, packaging requirements, and legislation unless otherwise specified in the Order.

5.2 All Products may be inspected and tested by SGX Europe, a representative of SGX Europe or third party, customers and higher tier contractors of SGX Europe, always on prior notice at all times and places. To facilitate inspection or testing, or for other reasons, such as, but not limited to auditing on the Supplier’s premises, or the Supplier’s subcontractor’s premises, the Supplier shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests. In its internal inspection and testing of the Products, the Supplier shall, if required by SGX Europe, use an inspection system accepted by SGX Europe in writing. All inspection records relating to the Products shall be available to SGX Europe during the performance of the Order, and thereafter if required by SGX Europe.

5.3 Final inspection and acceptance by SGX Europe shall be at the delivery destination unless otherwise specified in the Order. Such inspection shall be in accordance with SGX Europe’s customary established inspection procedures in place at the delivery destination of the Products. If rejection of a shipment would result from SGX Europe’s normal inspection level under such procedures, SGX Europe may, at its option, conduct a detailed inspection and charge the Supplier the reasonable costs thereof.

5.4 No inspection, tests, approval (including design approval), or acceptance of the Products shall relieve the Supplier from responsibility for any defects, including latent defects, in the Products, the Supplier’s warranty obligations in clause 6.1 below or other failures to meet the requirements of the Order.

5.5 If the Products are defective or otherwise not in conformity with the requirements of the Order, SGX Europe may, by written notice to the Supplier, at its discretion (i) reject such Products (part or the whole of the Order) and return them to the Supplier at the risk and cost of the Supplier and obtain the refund all payments made by SGX Europe, (ii) accept such Products at a fair and reasonable reduction in price, (iii) reject such Products (the whole or part of the Order), return them to the Supplier at the risk and cost of the Supplier and require the delivery of replacements (deliveries of replacements shall be accompanied by a written notice specifying that such Products are replacements), (iv) replace or carry out any work necessary to make the Products comply with the Order and charge the Supplier the cost thereof (including any incidental costs), or (v) terminate the Order for cause as provided in clause 18.2 below.

5.6 Rights granted to SGX Europe under this clause 5 are in addition to any other rights or remedies provided elsewhere in the Order or under law.

5.7 In the event that it is impractical to return the rejected Products to the Supplier, SGX Europe may require the Supplier to carry out the necessary re-design, repair, modification or replacement as appropriate at the Supplier’s expense where the Products are located.

5.8 Where Products are delivered which are not in conformity with the Order, SGX Europe shall have the right to suspend payment of any the price for such Products. In such an event, the term of payment shall be postponed and shall be 60 days from the date of delivery of Products which are in conformity with the Order.

6. WARRANTIES

6.1 Any other liability of the Supplier notwithstanding, including liability under the law, the Supplier warrants that the Products will (i) be free from defects in quality, workmanship and materials, (ii) conform to the design, specifications, drawings, samples, or other descriptions referred to on the Order, (iii) be suitable for the purposes, if any, which are stated on the face of the Order, and (iv) conform with all the other requirements of the Order.

6.2 These warranties, and all other warranties, express or implied, shall survive delivery, inspection, acceptance and payment and shall run to SGX Europe and customers of SGX Europe at whatever tier.

6.3 In addition to any other rights SGX Europe may have, if Products are found not to be as warranted within a period of one (1) year, or such longer period as has been agreed by the Parties, after acceptance by SGX Europe, SGX Europe may return such Products to the Supplier, at the Supplier’s expense, for correction, replacement or credit, as SGX Europe may direct. Any Products corrected or furnished in replacement shall, from the date of delivery of such corrected or replacement Products, be subject to the provisions of this clause 6 for the same period and to the same extent as Products initially furnished pursuant to the Order.

6.4 As to Services, any other liability of the Supplier notwithstanding, including liability under the law, the Supplier warrants that it possesses the requisite expertise, facilities and equipment necessary and appropriate to perform the Services, and that such Services shall be performed in a safe and workmanlike manner. In addition to any other rights SGX Europe may have, if the Services are found not to be performed as warranted within a period of one (1) year or such longer period as has been agreed, after the conclusion of the performance of the Services by the Supplier, the Supplier shall, at SGX Europe’s option, either refund to SGX Europe the amount paid for the Services, or perform the Services again in a proper manner to the extent necessary to provide SGX Europe with the result originally contemplated by SGX Europe.

7. MATERIALS AND TOOLING

7.1 If SGX Europe furnishes the Supplier with material or equipment (such as special dies, moulds, jigs, tools, test equipment, masks, etc.) or pays for such material or equipment, title thereto shall remain or vest in SGX Europe, and the Supplier shall label, identify as SGX Europe’s property, maintain and preserve (to ensure it is kept free from damage, deterioration, contamination and misuse) such material and equipment and shall dispose of it (including scrap) only in accordance with SGX Europe’s written direction or return it to SGX Europe’s nominated address at the Supplier’s cost, upon request. In the event that equipment has only been partly funded by SGX Europe, SGX Europe and the Supplier shall jointly own the equipment in proportion to their respective funding. In circumstances where SGX Europe terminates the Order SGX Europe will become the owner of the partly funded equipment upon payment of a reasonable sum taking into account the Supplier’s investment in the tooling and the current state of the tooling.

7.2 Unless otherwise authorised in writing by SGX Europe, the Supplier shall use such material or equipment exclusively in the performance of the Order. The Supplier shall be responsible for any loss, damage, or destruction to such material or equipment. All material or equipment shall be held where SGX Europe instructs. SGX Europe reserves the right to enter on notice any premises where the material and equipment is located in order to inspect, stock check or obtain the return to SGX Europe of such material and equipment.

7.3 The Supplier must examine all material or equipment furnished by SGX Europe to ascertain its suitability for the purpose for which it has been furnished prior to using it and continually through its use. Any problems with use must be immediately advised to SGX Europe in writing.

8. CONFIDENTIAL INFORMATION

8.1 Unless a Confidentiality Agreement is in place between the parties, the terms of which will prevail, the provisions of this clause 8 will apply.

8.2 All information provided to SGX Europe by the Supplier shall not be confidential and SGX Europe may use it for any purposes whatsoever.

8.3 All information obtained by the Supplier from SGX Europe pursuant to the Order shall be received in confidence and shall remain the property of SGX Europe, and shall be used by the Supplier only to the extent necessary for the performance of the Order. The Supplier shall not disclose any SGX Europe information to third parties without SGX Europe’s prior written approval. The Supplier shall return all of SGX Europe’s information upon completion or termination of the Order.

8.4 The Supplier shall not make or authorise any news release, advertisement, or other disclosure which shall deny or confirm the existence of the Order without the prior written consent of SGX Europe.

9. SUB-CONTRACTS AND ASSIGNMENT

9.1 The Supplier shall not subcontract any parts of the work called for by the Order without SGX Europe’s prior written approval.

9.2 The Supplier shall not assign the Order or any rights under the Order without the prior written approval of SGX Europe and no assignment made in breach of this provision shall be binding on SGX Europe without such written consent.

9.3. Where SGX Europe expresses its consent to the performance of an Order and compliance with these Terms and Conditions by third parties or to an assignment of the rights and obligations under the Order, the Order shall be fulfilled or the rights and obligations shall be assigned in accordance with SGX Europe instructions.

9.4. In any event the Supplier shall remain responsible for the fulfilment of the Order by the third parties whom the Supplier entrusted with the fulfilment of the Order or the third parties to whom the Supplier assigned the rights and obligations under the Order.

10. COMPLIANCE WITH LAWS

10.1 The Supplier shall comply with all applicable laws in the manufacture, sale and provision of the Products.

10.2 The Supplier undertakes to respect all legal rules and regulations in respect of employment of children and in particular the legal age of admission to work.

10.3 The Supplier undertakes to take into account the respect of the environment when taking decision having an environmental impact. The Supplier undertakes to observe all legal rules and regulations in respect of environment and to take the steps enabling it to prove, if requested by SGX Europe, the good performance of its obligations in respect of environment.

11. HEALTH AND SAFETY

11.1 The Supplier, its employees, agents and sub-contractors shall comply with the local procedures relating to discipline, fire, health and safety when on SGX Europe’s site(s). The Supplier will promptly provide SGX Europe with all present and future instructions relating to the use and disposal of Products and in particular draw attention to any dangers or hazards or restrictions associated with the Products.

12. CLEAR TITLE

12.1 The Supplier shall furnish, upon SGX Europe’s request, waivers by the Supplier and all other persons entitled to assert any lien rights in connection with the performance of the Order. The Supplier warrants that all Products are free from any liens and encumbrances.

13. INTELLECTUAL PROPERTY

13.1 All intellectual property rights, including, but not limited to all technical information, data, technology, design rights or copyrights (“Intellectual Property”) made available / provided to SGX Europe by the Supplier arising from the performance of the Order shall remain the property of the Supplier.

13.2 Concerning the Intellectual Property provided under or in connection with the Order, the Supplier shall grant SGX Europe, a paid, non-exclusive, irrevocable license with no limitation as concerns the territory, including the right to grant sub-licenses to subcontractors, clients of SGX Europe and their end-users, for the whole of the Intellectual Property, to the extent necessary for conducting the sales of the Products by SGX Europe, including, without limitation, reproduction, preparation of derivative works, distribution of copies amongst the general public, and public performance and public display, for the purpose of using, for its own needs or the exercise of these rights by SGX Europe, subcontractors, clients of SGX Europe or their end-users. In particular, the above license shall comprise the right to use or reproduce the relevant literature of the Supplier, such as use and maintenance manuals, technical manuals, printouts, drawings, training handbooks and other similar source documentation and sales documentation. The Supplier is obliged to notify SGX Europe without delay in writing of any change to the above documentation.

13.3 The Product Price shall also comprise the fee for granting the license referred to in Clause 13.2 above.

14. INDEMNITY

14.1 The Supplier shall keep SGX Europe indemnified in full against all direct, indirect or consequential liabilities for damage, including bodily harm, caused by loss business, depletion of goodwill, loss of profit, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by SGX Europe caused by or resulting from (i) any claim made against SGX Europe in respect of any liability, loss, damage, injury, cost or expense sustained by SGX Europe’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Products as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Order by the Supplier, its sub-contractors, agents or employees (ii) any breach of the warranty in clause 6 above, (iii) any failure to comply with the provisions of clause 10 above, or (iv) an infringement or alleged infringement of any Intellectual Property rights caused by the use, manufacture or supply of the Products, except where such infringement resulted from the Supplier’s compliance with detailed designs provided by SGX Europe.

14.2 The Supplier shall carry and maintain insurance coverage sufficient to cover all obligations specified in this Clause 14 and, upon SGX Europe’s request, shall furnish SGX Europe with satisfactory evidence of such insurance.

15. EXPORT CONTROL OR SIMILAR REGULATIONS

15.1 The Supplier shall obtain at its own expense all export licences or similar authorisations required to supply the Products to the delivery location specified in the Order.

15.2 The Supplier warrants that it has complied with all export control provisions applicable to the Order and holds harmless and indemnifies SGX Europe against all consequences of any breach of such controls by the Supplier, its subcontractors or suppliers at any tier.

15.3 At the earliest possible opportunity and in no event later than acceptance of the Order, the Supplier shall provide to SGX Europe full details of any export, re-export, import, or similar controls applicable to the Products, components thereof, or related designs and specifications.

16. CESSATION OF PRODUCTION

16.1 If the production of any Products is to be permanently discontinued by the Supplier at any time within two (2) years after the final delivery of such Products under the Order, the Supplier shall give SGX Europe at least one hundred and eighty (180) days prior written notice of such discontinuance. The Supplier shall accept Orders from SGX Europe for such quantity of Products as required by SGX Europe, at the prevailing quality and a maximum of the prevailing price until SGX Europe has secured an acceptable alternative source of supply or, at SGX Europe’s option, agree free access rights to SGX Europe or a company designated by SGX Europe to the Intellectual Property in the Products.

17. CHANGES

17.1 SGX Europe may, at any time, in writing, suspend performance of the Order in whole or in part; make changes in the drawings, designs, specifications, method of shipment or packing, or time or place of delivery of the Products; or require additional or diminished Products. If any such change causes an increase or decrease in the cost, as evidenced by an account from the Supplier, of, or the time required for performance of the Order, a fair and reasonable adjustment shall be made to the contract price or delivery dates or both, and the Order shall be modified in writing accordingly.

17.2 Any claim for adjustment may, at SGX Europe’s option, be deemed to be waived unless asserted in writing (including the amount of the claim) and delivered to SGX Europe within fifteen (15) days from the date of receipt by the Supplier of the change to the Order. If the cost of property made obsolete or excess as a result of a change is paid by SGX Europe, SGX Europe may prescribe the manner of disposition of such property.

17.3 Nothing herein shall excuse the Supplier from proceeding with the Order as changed.

17.4 The Supplier shall advise the Buyer in writing of all proposed changes in the specification or method of construction of the Products supplied including but not limited to changes in form, fit, function, service life, reliability, maintainability, interchangeability or safety. In the event of the Buyer accepting the change, written approval will be sent to the Supplier.

18. TERMINATION

18.1 Without Cause: SGX Europe may terminate, for its convenience, all or any part of the Order at any time by written notice to the Supplier. The Supplier shall comply with all directions given by SGX Europe with regard to the Products. The Supplier shall submit an account to SGX Europe within one (1) month of the date of notice of termination with written evidence of costs incurred. SGX Europe will agree a fair and reasonable price for all work performed at the time of the termination and may undertake a third party audit of the Supplier account at SGX Europe’s option. The Supplier will mitigate all costs incurred. In no event will SGX Europe be liable for more than the price of the Order or part Order terminated and shall not be required to compensate the Supplier for loss of anticipated profits or any consequential loss.

18.2 With Cause: If the Supplier breaches the Order or these Terms and Conditions in any way and does not rectify such breach within ten (10) days after notice from SGX Europe, SGX Europe may (in addition to any other right or remedy provided by the Order or by law) terminate all or any part of the Order by written notice to the Supplier. Such termination shall be without liability to SGX Europe and SGX Europe may purchase substitute Products elsewhere and the Supplier shall be liable to SGX Europe for any related cost occasioned thereby. In case of termination by SGX Europe of a development, the Supplier shall grant SGX Europe or the company designated by SGX Europe all the documentations and intellectual property rights necessary to complete the development.

18.3 Insolvency: If the Supplier becomes insolvent, has a receiver or administrator appointed, is compulsorily or voluntarily wound up or SGX Europe has reason to believe that any such events may occur then SGX Europe may, without prejudice to any other right, suspend the performance of or terminate the Order without liability other than for Products accepted prior to the suspension or termination.

18.4 No price reduction/ change to the terms and conditions of Order: If in the case referred to in Clause 2.2 sentence 2, the Supplier refuses to reduce the price or make such a change to the terms and conditions of the Order which would be satisfactory to SGX Europe, SGX Europe may terminate, at its discretion, the whole or any part of the Order, including also an order for medium- and long-term Product supplies, at any time, upon a written notification to the Supplier. Clause 18.2 shall apply accordingly.

18.5 Continuing Obligations: The Supplier shall continue performance of the Order to the extent not terminated. 

19. FORCE MAJEURE

19.1 SGX Europe reserves the right to defer the date of delivery or payment or to cancel the Order or reduce the volume of the Products ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of SGX Europe including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

20. WAIVER AND SEVERANCE

20.1 The failure or delay of SGX Europe to insist upon the performance of any provision of the Order, or to exercise any right or privilege granted to SGX Europe under the Order, shall not be construed as waiving such provision or any other provision of the Order, and the same shall continue in full force and effect.

20.2 Any waiver by SGX Europe of any breach of, or any default under, any provision of the Order by the Supplier shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Order.

20.3 If any provision of the Order is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, the other provisions of the Order shall not be affected thereby and shall remain in full force and effect.

21. GOVERNING LAW

21.1 The Contract shall in all respects be governed and construed in accordance with the laws of Poland and any unresolved disputes shall be finally settled by the state court having jurisdiction over the location of the Company’s registered office. 

22. ENTIRE AGREEMENT

22.1 The Order, and any supplemental sheets and riders annexed thereto by SGX Europe, contains the complete and entire agreement between the parties as to the subject matter thereof and replaces and supersedes any prior or contemporaneous communications, representations or agreements, whether oral or written, with respect to such subject matter.