Screening Eagle Technologies

GENERAL TERMS AND CONDITIONS OF SALE

 

Thank you for choosing Screening Eagle’s advanced inspection technologies. Please read carefully these Terms and Conditions of Sale which constitute the sales contract between Screening Eagle and its Customers.

1.       Area of Applicability

1.1.    The following General Terms and Conditions of Sale, as amended from time to time (the Terms and Conditions of Sale), apply to all commercial sales of goods, including without limitation, licensing of certain specific basic operational software provided or embedded in and delivered as integral and/or in connection and linked to certain goods, as updated from time to time (the Operational Software) and related services made or provided by, as well as to all future deliveries and performances of Screening Eagle Technologies AG, a Swiss company with registration no. CHE-262.732.001 or Proceq S.A., a Screening Eagle company organized under the laws of Switzerland with registration no. CHE-105.959.666, both with registered office at Ringstrasse 2, 8603 Schwerzenbach, Switzerland or any its affiliates (hereinafter Screening Eagle), and constitute an integral part of each sales contract that is entered into between a customer (hereafter the Customer), and Screening Eagle. For purposes of these Terms and Conditions of Sale, Screening Eagle means the Screening Eagle group company referred to in the final written offer, quotation or order acknowledgement.

1.2.    Any deviation to and from these Terms and Conditions of Sale shall only be valid if pre- agreed upon between Screening Eagle the Customer in writing.

1.3.    Any contrary general terms and conditions of a Customer are expressly excluded and shall not apply, irrespective of whether Screening Eagle expressly objects in a particular case or not.

1.4.    Particular conditions of contract validly agreed upon by Screening Eagle and the Customer in written form for the purpose of a specific sales/purchase transaction shall prevail over these Terms and Conditions of Sale if in contradiction with the same.

 

2.       Customer Orders

2.1.    Customer’s purchase orders can be made in writing. Such orders must be accepted by Screening Eagle in writing to constitute a binding, valid and enforceable contract. A contract is entered into only upon formal acceptance of the Customer’s order by Screening Eagle. Any quotation made by Screening Eagle even if made following a request of a Customer shall be always deemed to be only a request to the Customer to make a quotation to Screening Eagle and shall not be considered a contract, as the contract is only entered into upon formal acceptance of such quotation by Screening Eagle.

2.2.    Screening Eagle may amend purchase orders at any time by notice to the Customer. In such case, the Customer shall be bound by the respective amendments unless such amendments result in higher or lower costs and/or in a longer or shorter delivery period and Customer submits to Screening Eagle a contestation of such amendments within three (3) business days of receipt of the amendment notice.

 

3.       Operational Software License

3.1.    Screening Eagle grants to the Customer a non-exclusive, revocable, non-transferable, limited license to use the Operational Software during the lifetime of the goods purchased by Customer strictly in connection with Screening Eagle’s branded equipment purchased by the Customer as specified in the contract (the License). The License includes the Operational Software version initially licensed with certain purchased goods and any further updates, features, functionalities, support or maintenance services provided by Screening Eagle at its sole discretion.

3.2.    Customer shall not, either itself or through any third parties, publish, transmit, retransmit, disseminate, broadcast, circulate, sell, resell, loan, lease, distribute or transfer the Operational Software or copies to third parties, nor reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the components of the Operational Software. Customer agrees to notify its employees and agents who may have access to Operational Software of the restrictions contained herein and to ensure their compliance with these restrictions.

3.3.    The Operational Software may be used to access and use various products and services of Screening Eagle. All access to and use of such products or services by means of the Operational Software, including any charges for such access and use, will be governed by the terms applicable to the relevant products or services.

3.4.    Customer hereby acknowledges and agrees that all right, title and interest in and to the Operational Software, the documentation and any other related materials are, and shall remain, vested solely in Screening Eagle and other software owners, if any, and Customer shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, Customer agrees that it shall make no use of the Operational Software, the documentation or any other related materials. Any and all goodwill associated with such rights shall inure directly and exclusively to the benefit of Screening Eagle.

3.5.    The Operational Software is provided as is and as available. Neither Screening Eagle nor any licensors of the foregoing make any warranty of any kind, whether express or implied concerning the Operational Software, including that access to any Operational Software will be uninterrupted, secure, complete or error free, or it will meet Customer’s requirements.

3.6.    Certain goods may include specific Operational Software with automatic data processing and analysis tools. While every effort is made to ensure the accuracy of the information provided by those tools, the Customer acknowledges that the results provided by them may be not absolutely error free.

3.7.    Screening Eagle will use reasonable commercial efforts to rectify faults that materially affect the functionality of the Operational Software when reported by the Customer within twelve (12) months as of purchase of the goods connected therewith. The Customer shall report and describe the material defects to Screening Eagle in writing without undue delay. Screening Eagle reserves the right to rectify the defect as it deems appropriate.

3.8.     Other than in respect of the warranty given herein Screening Eagle shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Operational Software, including without limitation any loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with or the use of the Operational Software.

3.9.     In no event shall Screening Eagle and/or licensors be liable towards Customer for any claim(s) relating in any way to:

(a) Customer's inability or failure to perform any work with the Operational Software;

(b) any lost profits (whether direct or indirect) or any consequential, exemplary, incidental, indirect or special damages relating in whole or in part to Customers' rights under the sales contract and these General Terms or use of or inability to use the Operational Software even if Screening Eagle and/or licensors of the foregoing have been advised of the possibility of such damages.

3.10.   Customer shall accept sole responsibility for, and Screening Eagle shall not be liable for the use of the Operational Software by Customer, or any other user. Customer shall defend, hold Screening Eagle harmless and fully indemnified against any claims, costs, damages, loss, and liabilities arising out of any such use (including reasonable expenses and costs).

3.11.   Customer's exclusive remedy and Screening Eagle's, (and/or licensors of the foregoing) entire liability hereunder if any, for any claim(s) for damages relating to the Operational Software made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the 50% of the fees paid by the Customer relative to the goods purchased and linked to such Operational Software.

 

4.       Country-Specific Regulations

4.1.    The Customer must inform Screening Eagle no later than at the time of the purchase order of any applicable country-specific regulations and standards. This information shall be provided in writing and outline all reasonable details. It shall apply without limitations to regulations and standards that require adjustments or changes to the goods and/or Operational Software to be delivered by Screening Eagle.

4.2.    Unless otherwise agreed in writing, the goods, including the Operational Software delivered by Screening Eagle shall be deemed to conform to the contract if they satisfy applicable Swiss regulations and standards.

4.3.    The Customer shall:

(a)  comply, and ensure that its relevant personnel comply, with all applicable laws and

regulations, including without limitations any law, regulation, statute, prohibition, or wider measure applicable to the goods, services and/or to either party relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures (Laws and Regulations) to ensure that goods are sold, supplied, imported, exported, re-exported, transferred, used, disclosed and/or transported only in accordance with all applicable Laws and Regulations;

(b)  notify Screening Eagle immediately if it becomes aware that it or any of its personnel or to the extent it is a re-seller of the goods, any of its clients may have breached any applicable Laws and Regulations;

(c)  provide any and all information and documents required for the export or shipment. Any delays due to export controls or approval procedures suspend any deadlines and delivery times. If required approvals are not granted or if the delivery and service are not approvable, the contract shall be deemed not concluded with respect to the parts concerned;

(d)  not supply any goods of Screening Eagle, in any form, directly or indirectly, to any person or entity that is not compliant with applicable Laws and Regulations;

(e)  indemnify and hold Screening Eagle harmless from and against any claim, loss, liability or direct or indirect damage suffered or incurred by Screening Eagle resulting from or related to Customers, its personnel or to the extent it is a re-seller of the goods, any of its clients’ breach of this provision.

4.4.   The Customer represents and guarantees that it is not subject to any governmental or supragovernmental trade sanctions. Furthermore, the Customer guarantees that it does not maintain any direct or indirect business or other relationships with terrorists, terrorist groups or other criminal, anti-constitutional organisations or sanctioned business partners. In particular, the Customer ensures by means of appropriate organisational measures, by using appropriate systems, the implementation of applicable embargoes, the EU regulations against terrorism and crime applicable in the context of the delivery relationship as well as the respective USA or other applicable provisions within the framework of its business operation.

 

5.       Sales Documentation and Quotations

5.1.    Any and all sales documentation and technical descriptions and data provided by Screening Eagle to a Customer in the context of a sales contract shall not be binding, unless otherwise stated by Screening Eagle in writing. Each party retains all rights to plans and technical documents provided to the other party.

5.2.    Quotations made by Screening Eagle remain subject to change at Screening Eagle sole discretion, i.e., quotations may be freely revoked or amended, at any time prior to being replied to or accepted by the Customer. In the absence of specific provisions, any such quotations shall be in effect for a period of thirty (30) calendar days from the date they are issued and shall automatically expire thereafter if Customer has not agreed to the terms and conditions set forth thereon.

 

6.       Prices

6.1.    Screening Eagle’s prices in price lists, quotations, etc., will be in Swiss Francs (CHF) and understood to be Ex Works as per Incoterms 2020 trade terms published by the International Chamber of Commerce (EXW) and shall not include taxes or charges and packing and transport costs. The applicable prices shall be those in effect on the date of the acceptance of the order by Screening Eagle.

6.2.    All freight, insurance, approval and certification costs shall be solely borne by the Customer. Furthermore, the Customer shall pay all taxes, fees, customs duties and other charges that arise in connection with the performance of the contract. Any payments provided for hereunder shall be paid by the Customer net of any applicable withholding required under any applicable law. To the extent that such charges are levied from Screening Eagle, the Customer shall reimburse them upon first demand.

6.3.    Screening Eagle reserves the right to charge to the Customer a handling fee of CHF 50 for any purchase orders of less than CHF 200.

6.4.    Screening Eagle may charge additional fees for services provided to the Customer under the sales contract and these Terms and Conditions of Sale.

 

7.       Payment Terms

7.1     Payments made by the Customer to Screening Eagle shall be made in the currency stated in the respective sales’ contract quotation and as indicated therein. Screening Eagle reserves the right to invoice the Customer in any currency it deems suitable including but not limited to CHF, EUR, GBP, USD, SGD, RMB.

7.2     All Screening Eagle invoices for deliveries to Customers or third parties specified by such Customers shall be due and payable by the Customer as per the terms indicated in the respective contract quotation.

7.3     In the event the Customer fails to fulfil partially or entirely any of its payment obligations under the contract in a timely manner, Screening Eagle shall have the right, without any further notice, to demand default interest on the outstanding balances in the amount of the current SARON® (Swiss Average Rate Overnight), but no less than five 5% per annum.

7.4     Any reimbursement made by Screening Eagle to Customer under the sales contract and these Terms and Conditions of Sale will be via the same payment method as was used initially used by Customer.

7.5     On expiration of the payment period, the Customer is automatically in default, without any prior reminder. Screening Eagle reserves the right to charge an additional administrative fee of CHF 200 to the Customer for each reminder sent hereunder. Any objections to invoices must be lodged by the Customer in writing within the payment period. If no objections are received within this period, the invoice shall be deemed to have been accepted by the Customer as correct.

7.6     Screening Eagle shall have the right to set off any claims that the Customer asserts against Screening Eagle against any claims due by the Customer to Screening Eagle. The Customer shall not have the right to set off its payment obligations against Screening Eagle unless awarded in a final enforceable judgment to do so.

7.7     In the event of a payment default and justified doubts as to the solvency of the Customer, Screening Eagle shall have the right to at its sole discretion (i) hold back in part or whole the delivery of the goods, (ii) immediately accelerate maturity of all claims under the business relationship and (iii) make delivery of any unpaid goods contingent on sufficient advance payments or upon being provided with adequate security for the Customer’s performance its obligations hereunder.

 

8.       Delivery Terms

Deliveries made to the Customer or third parties designated by it hereunder are exclusively EXW, i.e. ex works, storehouse or another named place (see Clause 6), not cleared for export and not loaded on any collecting vehicle.

 

9.        Delivery Times

9.1.    The contractually agreed delivery date shall be deemed to have been satisfied if the goods are made available for delivery by such time at the place of manufacture or at any other designated place.

9.2.    If the delivery date cannot be met due to any of the following reasons, the delivery period may be extended by a reasonable period of time at Screening Eagle’s discretion and without any liability whatsoever:

(a)  If the Customer fails to comply with its contractual obligation to cooperate;

(b)  If the failure to meet the delivery time is due to a force majeure event as described to in Clause 20, strike or lockout or another unforeseeable event that is not the fault

of Screening Eagle;

(c)  If the Customer demands subsequent changes or additions to its initial purchase

order.

9.3.     Without limiting any rights of Screening Eagle hereunder, partial deliveries of any goods

purchased under a contract are permissible.

9.4.     Screening Eagle reserves all rights under Clause 7.3.

9.5.  Notwithstanding anything to the contrary elsewhere herein or in applicable law, Customer agrees that no liquidated, consequential, or punitive damages for delay shall become due and payable by Screening Eagle.

9.6.  Delivery times indicated in quotations of Screening Eagle are not binding until the sales contract is validly entered into. As to availability of the respective goods any such quotations are without engagement.

 

10.       Transfer of Ownership, Use and Risk

10.1     Title and ownership to the goods passes to the Customer upon full and complete payment of all Customer’s obligations hereunder.

10.2     As long as any outstanding amount has not been paid in full, Screening Eagle shall have the right to assert a right of retention in the appropriate registries, accounts or otherwise at the expense of the Customer in accordance with applicable law.

10.3     The Customer hereby commits to refraining from taking any action that would be contrary to the objectives