Terms and Conditions
for Supply of Products
Table of Contents
- Terms of payment
- Delivery of products
- Acceptance of services
- Buyer’s responsibilities
- Risk and ownership
- Liquidated damages for delay
- Limitation of liability
- Force Majeure
- Intellectual Property Rights
- Product information
- Rights and obligations of the Parties of the Agreement
- Termination of a PO
- Partial invalidity
- Communication between the Parties
- Applicable law
- Export Control
Valid as of December 21 2023
Last updated: 21.12.2023
1.1. These Terms and Conditions for Supply of Products (the “T&C) regulate the relations between EnduroSat GmbH (an EnduroSat’s company), duly registered under the laws of Germany, with registered address at Berliner Freiheit 2, 10785 Berlin, Germany (the “Seller”) and its clients (the “Buyer”) related to the sale and delivery of products and services by the Seller which products and services are purchased by the Buyer.
1.2. Under these T&Cs the Seller shall deliver and transfer ownership and the Buyer shall accept and pay products, specified in a separate purchase order sent from the Buyer to the Seller (the “PO”) based on a quotation sent by the Seller to the Buyer (the “Quotation”), subject to preliminary issuance of the relevant administrative export or import certificates/authorizations/statements.
1.3. On the terms and conditions hereinafter set forth, the Buyer hereby retains the Seller to perform, and the Seller agrees to perform, the services available under the respective PO. Buyer will provide such services pursuant to the terms and conditions set forth herein including any indemnifications and limitations on liability. The services available under the respective PO are limited to services specified in the Statement of Work (“SoW”) which shall be provided at the time and place, and in the manner specified therein. The Seller may partially change the way of provision of services provided any change must be within the scope awarded based on the description provided in the SoW. Any other deviation from a specific requirement set out in the T&C, including the PO and the SoW, for a specific item or specific period shall require the prior written agreement between the Parties.
1.4. The products are produced under the producer’s brand “EnduroSat” and the producer is the sole legal owner of any and all respective IP rights and copyrights in the products
2.1. The price of the products delivered under these T&C will be specified in the respective PO.
2.2. Delivery terms are INCOTERMS 2020 DAP.
2.3. The Buyer shall be responsible for import clearance and payment of any applicable local taxes and/or import duties, due in the country of the Buyer.
2.4. The price is payable to a bank account of the Seller specified in the PO.
3. Terms of payment
3.1. The price under Art.2.1 above including transportation costs shall be paid as specified in the respective PO.
3.2. Timely payment shall be a material term. Notwithstanding the foregoing, Buyer may not otherwise withhold or offset any amounts owed to Seller.
4. Delivery of products
4.1. Delivery of the products under this T&C is up to certain number of business days/weeks as specified in the respective PO and in any case such period starts to flow not earlier than: a) receipt by the Seller and/or the Buyer of all the relevant (according to 2 the applicable legislation) certificates/authorizations/statements for export/import of the products (if needed); and b) 1 payment of the full price or advance or any advance payments as the case may be from Buyer to the Seller, as specified in the PO/the Quotation.
4.2. Products are handed over to the Buyer by signing of a hand-over protocol or by the acceptance and signing of the transport document by the transport agent. The Buyer shall notify the Seller in writing within 3 (three) business days from receipt of delivery for established quantitative and qualitative variations of the product which are not established at the time of acceptance. After this period, the delivered product is considered to be undamaged.
4.3. The Buyer shall indemnify the Seller for any damages the latter has suffered, and any costs incurred as a result of a fault or ungrounded notification under Art.4.2.
4.4. Buyer shall receive the goods as soon as practicable upon being notified by the Seller or the transport agent that the products are delivered. In case the products are not received by the Buyer in the above manner or it refuses to receive them, the acceptance of the products will be deemed to be made within 7 (seven) days from the date of receipt of the written notice by the Buyer for the delivery of the goods.
4.5. In this case of Article 4.4. above, the Seller has the right to unilaterally draw a hand-over protocol and will issue an invoice to the Buyer if such has not been issued.
4.6. Minor inconsistencies that do not violate the operation and the operational safety of the products or reduce their functionality are not a reason for refusal the acceptance of the products or the delivery of the latter.
4.7. Buyer shall not refuse or withhold acceptance of any product/deliverable item, if the respective product/deliverable item has been tested and complies with the agreed functional and operational requirements for that product/deliverable item.
5. Acceptance of services
5.1. Upon completion of each separate stage of the deliverables/milestone, Seller shall notify Buyer and/or provide respective deliverable/s to Buyer as specified in the Statement of Work (“SoW”). Any stage of completion/milestone shall be subject to acceptance by Buyer. Buyer shall have 5 (five) business days from notice of completion of the respective stage to notify Seller in writing of its acceptance (“Final Acceptance”), or of any non-acceptance, after which time Final Acceptance shall be presumed. Notwithstanding the foregoing, completion of all activities until the report on in-orbit measurements of payload performances shall be deemed Final Acceptance of all deliverables, including deliverable documents, products or items under the respective PO.
5.2. Deliverable documents submitted outside of a formal review shall be deemed to have been accepted unless rejected in writing within 10 (ten) days after receipt. Deliverable documents submitted for or during a formal review shall be deemed accepted upon the review acceptance as specified in Article 5.
6. Buyer’s responsibilities
6.1. Buyer shall timely discharge all Buyer’s obligations including without limitation: (a) securing all necessary approvals for the customer furnished equipment (CFE) / payload incl. for export/import control (the payload shall not be a military item, equipment, technology, etc according to the applicable Common Military List of the European Union; it will be ITAR free; and nothing in relation to the CFE shall lead to the conclusion that the platform is a military or ITAR item, where any breach of this warranty by the Buyer of this representation shall be considered to be gross negligence by it); (b) ensuring CFE complies with all applicable certification requirements and government authorizations, and (c) complying with the T&C and the related documents to it.
6.2. Seller makes no warranty related to CFE/payload and shall have no liability for losses related to negative results on testing of the CFE/payload during AIT
7. Risk and ownership
7.1. The risk transfer is done by the delivery of the Products to the Buyer or the moment at which the Buyer had to receive the delivered products as per 4.4. above. The transfer of the ownership occurs with payment of the full price of the products.
8.1. The Seller ensures that the supplied products are new, unused, have passed all stages of production control and are consistent with the submitted specifications and technical documentation.
8.2. The time period of the commercial guarantee of the standard products of the Seller is 12 (twelve) months from a) the date of delivery, respectively the signing of the delivery document (transport document) under 4.2. above; or b) the moment at which the Buyer had to receive the delivered products as per 4.4. above.
8.3. This warranty shall be valid upon presentation of proof of purchase of the product (e.g. invoice issued by the Seller).
8.4. The commercial guarantee shall not be provided and shall not be valid in the case of:
- Damages to the integrity of the products.
- Improper storage before usage, exposure to adverse weather conditions (temperatures above 100˚C or below -45˚C), wetting of the products or aggressive chemicals, violation of the requirements of the Seller.
- Incorrect usage carried out in violation of the instructions of the Seller (including, but not limited to exceeding the absolute maximum ratings as per the datasheets of the products) and the applicable law.
- Damage caused by poor choice of materials for installation (if any), alterations or repairs made by the Buyer or any third party without the knowledge of the Seller.
- Manipulation or unauthorized intervention on the technical integrity of the product or its components made by unauthorized personnel.
- Improper maintenance and failure to follow the instructions for use and operation.
- Wear out as a result of the normal use, wear and tear as a result of the impact of force majeure or unforeseen external shocks and wear caused by unrecoverable software error.
8.5. In the event that during the warranty period, one or more manufacturing defects are established, the Buyer must notify the Seller and give it a chance to check the defective product and shall provide a completed standard protocol for complaints to the Seller.
8.6. In this case, the Seller is obliged either to replace the advertised products with the same or equivalent model or to repair the damage and in some cases a credit note may be issued for the defective product at the selling price. The Seller should perform these actions in the shortest possible time, but not more than 30 days after the date of the signing of the complaints on its part.
8.7. The warranty period does not start from the beginning in case of a replacement. If it is found that the defect is attributable to the Seller, all costs will be charged to it. The Buyer covers the costs for sending the products to the office of the Seller.
8.8. In case of disagreement between the Seller and the Buyer on the reasons for defection, either Party may determine the defect and the reasons with the help of an independent inspection company. The current expenditure on payment of such control examination on the causes of the defects shall be at the expense of the Party requesting the same. The costs incurred, once the cause of the defect is established, shall be recovered by the responsible Party to the other Party.
9. Liquidated damages for delay
9.1. In the case that the Seller does not deliver the products in accordance with the terms specified in these T&Cs and the respective PO it owes penalties amounting to 1% of the value of the delayed supply for each full week of delay, but not more than 5% of full value.
9.2. Any other claims for damages for delay by the Buyer are excluded.
9.3. If the Buyer does not pay the products and services, subject to the conditions of these T&Cs and the respective PO, it shall pay a penalty of 1% of the value of delayed payment for each full week of delay, but not more than 5 % of the same value, if not otherwise agreed.
9.4. In the case that the Seller fails to perform any of its other obligations under these T&Cs and the respective PO it owes a penalty of 0.5% of the respective PO value for each full week of delay in implementation, but no more than 5% of the same value, unless otherwise agreed in these T&Cs and the respective PO.
9.5. Events or circumstances that are considered force majeure, do not exempt the Buyer from the liability to pay in the event that the maturity of that payment was due under the T&Cs and the respective PO.
9.6. Penalties under Article 9 shall not apply to delays which were caused by delays or failures by Buyer to provide its undertakings, including but not limited to delays in the delivery of the payload to Seller, any non-compliance with applicable interface requirements, any defects or failures of the payload, or unpreventable activity caused by unforeseen payload incompatibility discovered during assembly, integration and testing. In the event of a delay under Article 9.6, Seller shall be entitled to extend the time period for performance of any part of the work under the respective PO by the same duration of the delay and claim for any reasonable associated impact to the price.
10. Limitation of liability
10.1. TO THE EXTENT PERMITTED BY THE APPLICABLE LAW SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR SPECIAL DAMAGES, OR LOSS OF PROFITS, EVEN IF ADVISED OF SUCH POSSIBILITY. SELLER’S LIABILITY UNDER THESE T&C AND THE RESPECTIVE PO WILL IN ANY EVENT NOT EXCEED THE AMOUNTS PAID BY THE TIME LIABILITY ARISES AND SHALL EXPIRE WITH THE EXPIRATION OF THE OBLIGATIONS OF SELLER UNDER THE RESPECTIVE PO.
10.2. The Seller is not responsible/liable in case of official refusal by any relevant administration in charge to issue any of the needed export/import certificates, authorizations and/or statements for the sale and/or delivery of the products, stopping of the production/project development of the Buyer, lost profits, lost interest and other related damages, except in cases of gross negligence or willful misconduct of the Seller.
10.3. The Parties acknowledge the worldwide outbreak of the coronavirus disease, which is likely to affect the execution of the respective PO. The Parties agree, that each party shall be entitled to reasonable adjustments of the time schedule/ milestones/ delivery dates as well as to reimbursement of costs to the extent the delay and the costs are caused directly or indirectly by the outbreak of the coronavirus disease (COVID-19). Seller reserves the right to partial delivery/performance of service.
10.4. In no event, whether in contract or in tort (including breach of warranty, negligence and strict liability in tort), will the Seller be liable for consequential, indirect, exemplary, punitive or special damages, including loss of revenue, profit, goodwill or anticipated savings, business interruption or diminished business value, even if the Seller has been advised of the possibility of such damages in advance.
11.1. Each Party shall observe confidentiality of all information (including the design and technical characteristics of the products) and documentation received and supplied by the other Party to the Agreement which is identified as confidential and shall:
- provide information and records only to those employees who need it to fulfill their obligations;
- require their employees to treat such information and documentation confidentially as if they relate to their own confidential information;
- issue or otherwise provide such information or documentation only after the prior written consent of the other Party, which consent shall not be unreasonably withheld upon motivated objective reason.
11.2. The above restrictions do not apply in cases of enforced legislation and where for the purpose to obtain official permits and licenses, necessary information and documents shall be presented before the competent authorities, as well as when this is required by the controlling authorities under their jurisdiction.
11.3. In this case, the Party taking such action shall take the necessary care to respect the confidentiality of information provided by these authorities.
11.4. The term for compliance with the confidentiality of the information provided is five years after the termination of the Agreement between the Parties.
12. Force Majeure
12.1. Force Majeure shall be deemed to be (but not limited to) the following circumstances: war, an act of a civil or military authority, civil disturbance, insurrection or riot, sabotage, terrorism, natural disasters, epidemics, earthquakes, floods, strikes, riots and social unrest.
12.2. In the case of "force majeure" so that these circumstances affect the obligations of both Parties, the time for performance shall be extended by as much as the force majeure events/circumstances were in force.
12.3. Each Party shall notify the other Party of the occurrence and the termination of the force majeure event within 10 working days of its occurrence, regardless of the nature of the event. This notification must be confirmed by the relevant authorities of the country where this event has occurred or proven otherwise beyond a reasonable doubt.
12.4. In the event that the above notification and confirmation were not submitted within the agreed occurrence of force majeure, the Party claiming the force majeure shall be liable for damages the other Party has suffered as a result of the non-performance.
12.5. In the event of Force Majeure, provided that the event delays the implementation of the respective PO by more than 60 days, the Buyer and the Seller have the right to terminate it by signing a termination protocol. In this case, no penalties are due.
13.1. Any software, whether used or not and which is delivered under these T&Cs and the respective PO and is licensed by the Seller and its suppliers, shall be used only for the purposes of the respective PO.
13.2. The Buyer does not have the right to reveal the source code of the software to any third parties without the prior written consent of the Seller.
13.3. The Buyer shall be entitled to make software modifications and supplements, only in order to adjust the product to its own needs. However, the Seller shall not be responsible for the functionality of the products in case of source code modifications, made without the Seller’s verification.
13. Intellectual Property Rights
14.1. For the purposes of this Agreement, the Parties agree that the notion of intellectual property rights (“IP rights”) shall refer to all rights relating to: patents, inventions, trademarks, discoveries, copyrights (including software copyright), domain names, social network identifiers, logos, designs, utility models (and all extensions and renewals thereof), databases, semiconductor topographies, software, developments, ideas, improvements, techniques, concepts, methods, systems, formulas, algorithms, processes, schematics, design specifications and criteria, test procedures or results, technical information, manufacturing methods, copyrights, works of authorship, expressions, designs, texts, drawings, data, databases, data collections, graphics, specifications, technologies, knowledge, computer software and firmware including data files, productions source code, object code, application programming interfaces, architectures, files, records and other related specifications and documentation, know-how and any other confidential information and trade secrets (including, without limitation, customer and supplier lists) and other similar rights, of whatever nature and regardless of form (such as magnetic media), as well as all other intellectual or industrial property rights and forms of protection of a similar nature, whether registered or likely to be registered or arising from the mere fact of their creation or existence, as well as the right to make claims in relation to the above, and the right to take action against any past, present and future infringement of the above rights.
14.2. Any IP rights owned, created, or acquired by the Seller before the Agreement, hereinafter referred to as "Background Intellectual Property Rights" that relate to the work under the respective PO shall remain the ownership of the Seller.
14.3. Any newly IP rights owned, created, acquired, or developed by or on behalf of the Seller for use in, or incorporation into, the products or other deliverables provided by Seller under the respective PO hereinafter are referred to as “Foreground Intellectual Property Rights”. It is agreed and understood that Foreground Intellectual Property Rights are related to the execution of the SoW only and do not pertain to the subject matter of the Project in general.
Seller shall own all its Foreground Intellectual Property Rights and shall have the right to apply for and to own any intellectual property rights to such Foreground Intellectual Property Rights when such are created without the participation of Buyer.
14.4. Any newly IP rights owned, created, acquired, or developed by or on behalf of Buyer for use in, or incorporation into, the payloads shall remain the ownership of the Buyer. It is agreed and understood that such newly IP rights are related to the execution of the SoW only and do not pertain to the subject matter of the Project in general. Buyer shall have the right to apply for and to own any intellectual property rights to such newly IP rights when such are created without the participation of Seller.
14.5. Each Party is hereby granted a revocable, non-exclusive, non-transferrable, non-sellable, royalty-free license to use the other Party’s Background Intellectual Property Rights, Foreground Intellectual Property Rights, and newly IP rights as necessary for the purpose of building, and operating the satellite/s, as well as for the reception and use of any payload data for the duration of the mission within the expected period of mission operations specified in the SoW. Neither Party grants any right to the other Party to use said Background Intellectual Property Rights and Foreground Intellectual Property Rights for purposes other than the purposes set forth above, transfer or sublicense in any possible way its Background Intellectual Property Rights to any third party.
14.6. Any sublicense to Foreground Intellectual Property Rights or newly IP rights of either Party is subject to prior written approval by said Party.
14.7. Jointly developed intellectual property rights, if any, shall be subject to a separate agreement between the Parties.14.8. All rights to intellectual property not specifically conveyed herein are reserved by the respective Party.
15. Product information
15.1. Any information and product data contained in catalogs, brochures and price lists are binding for the Seller only if they are specified or attached/specified to the respective PO or a quotation sent by Seller to Buyer.
16.1. Quantitative increases, decreases, modifications and/or other changes for which the Seller is not responsible and which are a result of a request of the Buyer, changes in laws, regulations of the relevant authorities or changes in the technique will be checked with regard to their impact on prices and terms and will be offered to the Buyer by the Seller. Respective agreement regarding such changes shall be reached between the Parties in writing.
17. Rights and obligations of the Parties of the Agreement
17.1. Neither Party is entitled to transfer rights nor obligations to a third party under these T&Cs and the respective PO without the written consent of the other Party, which should not be unreasonably withheld.
17.2. The Buyer shall not have the right to re-export/re-sell the Products (including incorporated in other products) to a purchasing country or a country of destination which is subject to an arms embargo decided by a common position or joint action adopted by the Council or a decision of the Organization for Security and Cooperation in Europe (OSCE) or an arms embargo imposed by a binding resolution of the Security Council of the United Nations. The Buyer shall not use the products (including incorporated in other products) for providing of any services to a purchasing country or a country of destination or to any third party from a country which is subject to an arms embargo decided by a common position or joint action adopted by the Council or a decision of the Organization for Security and Cooperation in Europe (OSCE) or an arms embargo imposed by a binding resolution of the Security Council of the United Nations.
17.3. The Buyer declares that the products will not be used or are intended, in their entirety or in part, to be used in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons. The Buyer shall not have the right to re- export/re-sell the products (including incorporated in other products) to any third party for which there is any doubt that it will use the products for the purposes specified in the preceding sentence.
17.4. The Seller has the right to assign the respective PO together with all rights and obligations arising from it to another affiliated company of the Seller’s group.
17.5. In the event that the Buyer subsequently decides to re-sell the products delivered under these T&Cs and the respective PO to other person/entity, and if requested by the Seller, the Buyer is obliged preliminary to ask for permit the Seller, and if requested by the Seller -the Export Control authority of the Seller. In case of official institutional confirmation, the Buyer shall impose similar obligations on non-military product use, export control and IP protection. The end user or any of its official representatives must not be included in any Sanctioned Party Lists of the European Union, USA, United Nations or elsewhere.
18. Termination of a PO
18.1. Both Parties shall have the right to terminate the respective PO at any time by mutual consent. In this case they shall sign a Protocol, regulating all their relations concerning termination.
18.2. Either Party shall have the right to terminate the PO upon unilateral prior notice given to the other Party:
- at occurrence of a force majeure event lasted more than 60 days, or
- immediately, in case of official refusal by any relevant administration in charge to issue any of the needed export/import certificates, authorizations and/or statements for the sale and/or delivery of the products (if such are needed). In this case the Parties shall regulate their property relations concerning termination by signing a bilateral Protocol.
18.3. In case the cancellation or reduction of the payment of funding to Buyer occurs during the term of the advance payment and after the work under the PO has started, Seller shall be entitled to terminate the PO and claim a compensation for all costs incurred by the time of termination.
18.4. Each Party (“Terminating Party”) may terminate the PO if in such Party’s good faith determination, the other Party suffers from reputational issues connected to its business conduct, its officers, directors, investors, affiliate companies, etc., which harms or may harm the Terminating Party’s or its affiliated companies general or partial/specific reputation by such continued association with the other Party.
19. Partial invalidity
19.1. A decision of a competent court or arbitrator or arbitral tribunal or amendment of legislation which makes any provision of these T&Cs invalid or unenforceable will be limited to this provision and will not make the whole T&Cs/PO or any other condition of it invalid, void or unenforceable, and all other conditions will remain in full force and effect.
19.2. The Parties undertake the responsibility to make every effort to agree a valid, effective and enforceable provision to replace the provision deemed to be invalid, ineffective or unenforceable, that most closely reflects the purpose of the invalid, ineffective or unenforceable provision.
20. Communication between the Parties
20.1. Official binding communication – all messages, announcements and/or notices between the Seller and the Buyer in relation to the implementation of these T&Cs and the respective PO should be submitted in writing and submitted for signature to the responsible person or, if their handing over could be verified in any other way – by courier, fax or e-mail.
20.2. Communication between the Parties shall take place in English language.
20.3. The Parties shall be allowed informal communication in order to facilitate the implementation of these T&Cs and the respective PO – by phone, email, etc.
20.4. The informal communication has no legal value under this these T&Cs and the respective PO and is not considered officially accepted unless confirmed in writing.
20.5. Either Party shall appoint a respective authorized person to be liable for these T&Cs and the respective PO performance and the binding correspondence.
20.6. Either Party shall have the right to replace its appointed authorized person at any time without the consent of the other Party, however, the other Party shall be immediately notified thereof.
21.1. All disputes arising from the interpretation and/or implementation of these T&Cs, the respective PO, the Annexes thereto and the related documents shall be settled by the Parties by negotiation.
21.2. In the event that the Parties fail to reach an agreement within 60 days of the commencement of the negotiations or such negotiations do not begin until 30 days after the written invitation by one Party to the other to conduct such negotiations, all disputes will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Emergency Arbitrator Provisions shall not apply. The place of Arbitration will be Luxembourg.
21.3. The decisions of the arbitration shall be final and binding on both Parties.
21.4. The language for conducting of the arbitration proceedings is English.
21.5. The reference to arbitration shall not be considered a reason for the suspension of the execution of other obligations under these T&Cs and the respective PO.
22. Applicable law
22.1. These T&C shall be governed by the laws of Grand Dutchy of Luxembourg.
23. Export Control
23.1. The Buyer explicitly declares that it or its affiliates are not blacklisted i.e., not included in any Sanctioned Party Lists of the EU or the USA or elsewhere. The Buyer also declares that it is not a commercial representative of a blacklisted party, nor is acting for and on behalf of a blacklisted party.
23.2. For avoidance of doubt the Seller shall not be obliged to fulfill any PO if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargos or other sanctions.
23.3. If the Buyer transfers goods to a third party (hardware and/ or software and/ or technology as well as corresponding documentation, regardless of the mode of provision delivered by the Seller), the Buyer shall comply with all applicable national and international (re-) export control regulations. In any event of such transfer of goods, works and services the Buyer shall comply with the (re-) export control regulations of the European Union and USA.
23.4. The Buyer shall indemnify and hold harmless the Seller from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by the Buyer, and the Buyer shall compensate the Seller for all losses and expenses resulting thereof.
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