Terms and Conditions

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STANDARD TERMS AND CONDITIONS FOR EQUIPMENT

These Standard Terms and Conditions for Equipment contain the general terms and conditions which are applicable to agreements whereby the Customer intends to purchase equipment from EV Group Europe & Asia/Pacific GmbH. Within this agreement EV Group Europe & Asia/Pacific GmbH represents the Seller, and the Customer, to whom this quotation is addressed to, represents the Buyer.

1. SCOPE OF DELIVERY
The Buyer buys and the Seller sells the following equipment and services:
• Hardware of the system according to the Description and Technical Data
• Layout drawings and site preparation data, to be supplied prior to delivery
• Packing and delivery according to the delivery terms
• The Source Inspection test of the system at Seller’s works according to the conditions set out in paragraph ‎6; if applicable and separately purchased by buyer.
• Installation, commissioning and the Acceptance Test of the system at Buyer’s Installation Site according to the conditions set out in paragraphs ‎7 and ‎8, if applicable and separately purchased by buyer.
• One set of operating and maintenance manual in English on CD-ROM (PDF file format)

2. EQUIPMENT AND SERVICES TO BE PROVIDED BY BUYER
Not included in the Seller’s delivery are and therefore to be timely provided by the buyer:
• All civil works at Buyer’s Installation Site, such as foundations, buildings, pits, cable ducts, etc., nor clean rooms or similar installations
• Electricity supply up to the main switch at Buyer’s Installation Site
• Exhaust pipes and the connection and supply lines at Buyer’s Installation Site to the connecting points of the system for utilities such as cooling water, compressed air, process gases etc., according to Seller’s foundation drawings.
• Transport and insurance from the point of delivery in accordance with the agreed delivery term to the Installation Site.
• Unloading and moving of the system from Buyer’s receiving area to the place of installation.
• Substrates required for commissioning and for the Source Inspection test at Seller’s works; substrates, materials and all other operating expenses for commissioning at Buyer’s Installation Site, if applicable.
• Lifting devices including operator at Buyer’s Installation Site

3. PRICE AND PAYMENT
• The contract price covers the system, its components and associated services as expressly set out in paragraph ‎1. Seller will supply no further goods or services under the agreement.
• The contract price shall be paid to Seller to the account of the Seller indicated on the respective invoices.
• In case Buyer’s address is in Germany, Japan or the United States of America, Buyer agrees that the contract may be transferred to the respective subsidiary of Seller. In such case the invoice is issued by and shall be paid to the account of Seller’s subsidiary.
• All payments are to be made directly and exclusively to the Seller, net and without setoff or deduction.
• Buyer shall refund to Seller any value-added tax, sales tax or other tax that Seller is by law required to collect from Buyer or to pay on Buyer’s behalf.

4. ACCEPTANCE OF DELIVERY
The Buyer agrees to take delivery of the system on the date the system is ready for delivery, provided this date is no earlier than three weeks from the agreed on delivery date. If the Buyer refuses to take delivery of the system within three weeks of being notified that the system is available for shipment the Seller reserves the right to deem the order cancelled or utilize the equipment for another customer and rebuild the ordered equipment at the earliest possible time.

5. TIME OF DELIVERY AND FORCE MAJEURE
• The system shall be ready for delivery by the date or within the time defined in our quote.
• Seller is not responsible for delays arising from any failure by Buyer to provide the goods, services and facilities set out in paragraph ‎2 in good time or to have the Installation Site complete and ready before the start of installation, nor for delays arising through Force Majeure.
• Neither Buyer nor Seller shall be liable for partial or complete non-fulfillment of their obligations under the contract, if they are prevented from fulfilling their obligations by circumstances of Force Majeure, which include: strike, riot and civil unrest, war (whether declared or not), sabotage, fire, flood, earthquake and natural catastrophe, acts of government, and other unforeseeable circumstances beyond the parties’ control.
• Buyer may not claim Force Majeure in respect of acts of Government if the Buyer itself is an organ of that government or is owned or controlled by that government. In case of Force Majeure, execution of the contract is suspended for the period during which such circumstances last. The party claiming Force Majeure shall notify the other party in writing of the beginning and expected duration of the above circumstances immediately. A certificate issued by a relevant official source will be sufficient proof of the existence and duration of these circumstances. In the event of the circumstances of Force Majeure lasting for more than six months, the parties will endeavor to terminate the contract on a fair and amicable basis.

6. SOURCE INSPECTION TEST OF THE SYSTEM AT SELLER’S WORKS
The system will be fully assembled and commissioned in the works of the Seller by the personnel of the Seller, and will be subject to a Source Inspection test at Seller’s works prior to shipment. The purpose of the Source Inspection test is to demonstrate that the system fulfills its machine functions (e.g. substrate handling) without any chemicals or other machine contaminants. Substrates or other materials needed will be supplied by the Buyer at his cost. Seller will inform the Buyer not less than three weeks before the date of the intended Source Inspection test, and hereby invites the Buyer to attend and observe the test. Buyer and Seller will sign a Source Inspection test certificate to record that the system has provisionally fulfilled the specified acceptance conditions and is ready for shipment. Should the Buyer fail to attend the test, the certificate will be signed by the Seller only, and shall not be disputed by Buyer.

7. INSTALLATION AND COMMISSIONING AT BUYER’S INSTALLATION SITE
After arrival of the system at Buyer’s Installation Site the Seller will execute, within 4 weeks, the installation and commissioning of the system together with the personnel of the Buyer. Installation will start after the Buyer advises that the site has been prepared as follows:
• Weather-tight building with all foundations completed, with ambient room temperature between +18°C and +27°C.
• All supply connections according to Seller’s specifications available and operating
• Mobile hoist or fork-lift device available.
In addition to the equipment and services in paragraph ‎2, the Buyer will provide at no charge to the Seller,
• 1 electrician and
• 2 system operators
who are technically competent, and appropriately licensed where required. They will be immediately available to assist the Seller’s personnel during the commissioning and the Acceptance Test of the system.

8. ACCEPTANCE TEST AT BUYER’S INSTALLATION SITE
After the System has been commissioned at Buyer’s Installation Site, Seller will, in the presence of the Buyer, perform the Acceptance Test (hereinafter referred to as "Acceptance Test").
The Acceptance Test conditions as set out in Sellers Acceptance Test Protocol will apply.
Prices are based on EVG standard functional acceptance test conditions. Any additional tests may impact sales prices and delivery time. The Acceptance Test shall be deemed to have been successfully completed either if the Acceptance Test conditions have been fulfilled or if the Acceptance Test conditions have not been fulfilled and such non-fulfillment is due to actions taken or omitted by the Buyer, in particular in case the Buyer does not provide testing conditions or testing material which complies with the specifications as required by the Seller. Upon successful completion of the Acceptance Test the Seller is deemed to have discharged all his obligations under the contract, except for the warranty.
Until the successful completion of the Acceptance Test, Buyer agrees that it shall not use the equipment for production of material except for training purposes and shall grant to Seller access to the equipment at all times during normal business hours for such purposes.

9. WARRANTY
Seller warrants that the system will be free from defects in design, material and workmanship except ordinary wear-and-tear and corrosion. The warranty categories for equipments are:
- New equipment, installed by Seller’s personnel: 12 months starting from the date of delivery at customer site (standard warranty)
- New equipment not installed by Seller’s personnel, Demo equipment and refurbished equipment with limited warranty: a limited warranty of 6 months starting from the date of delivery at customer site, on parts only
- Used equipment, without warranty

The Seller will not be liable for any indirect or consequential loss or damage whatsoever (including without limitation loss of business, opportunity, data, profits) arising out of or in connection with such equipment. On-site Warranty support will be provided Monday through Friday, for any 8 hour period between 0900 and 1730, excluding local holidays. Software updates as defined by the Seller as software, which shall only improve system reliability, will be provided during the warranty period at no charge. The Buyer will also be notified of upgrades and enhancements as they are released, which the Buyer may purchase at its discretion. The Seller assumes no warranty for defects of designated used articles without warranty. Such articles are sold on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, compatibility, security and accuracy.

Seller’s liability in respect of valid warranty claims is limited to repair or replacement of the defective part, or to a refund of an equitable portion of the contract price, the choice of remedy being at Seller’s discretion. Seller shall be notified of any defect without delay. Where new parts are supplied, the old parts become the Seller’s property and shall be returned to the Seller. Parts not returned to the Seller within 30 days of replacement will be invoiced to the Buyer at the published rates. Seller is not liable for defects arising from natural wear-and-tear, improper use or maintenance, system failures due to the use of parts not purchased from Seller, alteration by Buyer or third parties, accident, external force, chemical or electrolytic action, or other influence not traceable to Seller. Excluded from the warranty are seals and gaskets, O-rings, lamps, bulbs, mirrors, heating elements, lubricants and fluids, and expendable or wearing parts. Any faulty part is to be put out of action immediately if its continued operation, its working or its use is likely to be the cause of further damage. The Buyer must grant the Seller reasonable time and opportunity to make repairs or supply replacements. Where such time and opportunity are refused the Seller shall not be liable for the remedy of the faults or defects concerned.
THE FOREGOlNG WARRANTY IS IN LIEU OF ALL OTHER WARRANTY; EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILlTY AND FITNESS FOR A PARTICULAR PURPOSE.

10. TRAINING
If separately purchased by Buyer, Seller will provide basic operator and maintenance training at Buyer’s Installation Site immediately after the Buyer signs the Acceptance Test Protocol. The period of training is according to scope of delivery, and will be performed during regular working hours; Buyer’s personnel is expected to be competent for the job assignment. Maintenance training will assume a working knowledge of electronics, mechanics, robotics, and PLC based systems.

11. ADDITIONAL TERMS
Consequential Loss: IT IS EXPRESSLY AGREED THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF BUSINESS OR LOSS OF PRODUCTION. This exclusion applies regardless of the cause of damage, including negligence, and regardless of the form of action, whether in contract or tort, and applies to the full extent permitted by applicable law.

Ownership:
The ownership shall transfer to buyer in accordance with the agreed incoterms and upon receipt of payment in full.
Temporary Software: Any Software installed on the System is proprietary and shall remain the property of the Seller. The Seller herewith grants to the Buyer a non-transferable, non-sub-licensable and non-exclusive license to use such Software in connection with and in the System. During the time of performing the Acceptance Test for the System the standard Software of the Seller installed on the System may be adapted to meet the Buyer’s specifications and needs. Until Final Acceptance of the System therefore only temporary Software is installed on the System and the Buyer is granted only a limited license to use such temporary Software and the System for testing and training purposes as authorized by the Seller in order to accomplish Final Acceptance of the System. Until Final Acceptance of the System, the Buyer shall not be entitled to use the Software and the System for any other purposes, including, but not limited to, production and other commercial purposes and the Buyer shall not be entitled to run processes on the System other than processes needed to accomplish Final Acceptance of the System. The Buyer acknowledges and agrees that such temporary Software may have a built-in time locking feature that will cause the System to “lock up” or become non-operational. Such features shall be removed from the Software upon Final Acceptance of the System.

License: The sale of the system to Buyer does not convey any license, expressed or implied, to practice processes or manufacture products covered by copyrights, trademarks, patents, utility models or other industrial rights licensable by third parties. If required, the Buyer shall obtain such licenses directly from the licenser, at his own expense.

Documentation I Software: Seller reserves all rights in any technical documentation and any software supplied with the system. Buyer may use the software and the documentation only for the operation and maintenance of the system, and shall not disclose them to any third party.

Standards: The system is constructed in accordance with the norms and standards set out in the Scope of Delivery. Prior to award of contract Buyer has to advise Seller in writing of all other applicable safety and operating standards in force at Buyer’s site. Buyer shall bear the cost of any alterations or additions to the system required complying with standards or regulations, which have not been advised to and agreed to by the Seller.
Engineering Costs: Engineering costs for modification or special design are not included in above quote unless stated separately.

Cancellations and Returns: If an order is cancelled by Buyer for any reason, Buyer shall pay to Seller within ten (10) days after written demand, the following cancellation charges: If the Buyer cancels his order less than thirty (30) days before the scheduled shipping date, Buyer shall pay to Seller a cancellation charge of 50% of the price quoted for the products that are cancelled. If Buyer cancels his order 30-60 days before the scheduled shipping date, Buyer shall pay to Seller a cancellation charge of 40% of the price quoted for the products cancelled. If Buyer cancels his order 60 days or more from the scheduled shipping date, Buyer shall pay to Seller a cancellation charge of 30% of the price quoted for products. Buyer agrees that such cancellation charges are a reasonable estimate of Seller's usual costs, expenses and damages in the event an order is cancelled. Buyer shall compensate Seller for any costs, expenses and damages which go beyond such cancellation charges, if this is due to the specific circumstances of the order (e.g. if time is of essence, in case of customized equipment, etc).

Termination: Seller reserves the right to cancel the contract partially or entirely in the event Buyer fails to make payment as specified or breaches any other terms and conditions of the contract.

Choice of Law:
This agreement shall be governed by and construed in accordance with the laws of Austria excluding its conflict of law rules and the application of the UNCITRAL rules.

Disputes:
All disputes arising out of or related to the contractual relationship between the Seller and the Buyer shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or three arbitrators appointed in accordance with these Rules. The place of arbitration shall be Vienna. The present arbitration clause shall be governed by Austrian law. The language of arbitration shall be the English language. The proceedings shall be governed by the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Federal Economic Chamber, Vienna (Vienna Rules). Notwithstanding this arbitration clause the Seller is entitled at its sole discretion to forward any claims the Seller may have against the Buyer with the competent court for the city of Ried/Innkreis or the competent courts at the corporate seat of the Buyer, as the Seller may select at its sole discretion.

Taxes: Any taxes, duties, fees or other statutory charges that may be imposed by the authorities in the country of destination in respect of the goods and services to be supplied under the contract shall be borne by the Buyer. If paid by Seller, these costs shall be refunded to Seller by Buyer on demand, excluding sales taxes applied on goods or services purchased by Seller.

Solicitation: Buyer, (including its subsidiaries, affiliates or successors), acknowledges that Seller’s customer service representatives are particularly valuable to Seller both because Seller has invested money and time in their training and because they have knowledge of trade secrets owned by Seller. As a result, Buyer agrees not to solicit for employment or not to employ any Seller’s customer service representatives for a period of not less than one year from the date that any Seller customer service representative last performed services for Buyer on behalf of Seller.
Customer reference: Buyer agrees to be published in Seller’s customer reference list.

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