|
KONIXBERT
HI-TECH, S.A. (KONIK-TECH®)
GENERAL PURCHASING CONDITIONS
The
present Purchasing Conditions will be applied to the Purchase Order of
Products by Konik-Tech.
1.-
GENERAL DISPOSAL
The
KONIK-Tech Company is hereafter referred as the “Buyer” and your Company
is referred as the “Supplier”. The present Purchase Order (P.O.) will be
subjected to the following general Purchase Conditions and/or the
particular Purchase Conditions included in our P.O. if any, unless the
Buyer would have agreed different conditions with the Supplier that
should have been agreed and signed by both parties in writing.
2.-
ORDERS
We only
accept as valid P.O. those coming from a regular document drawn up by
our Purchase Dpt. And duly signed by our Purchasing Manager. We do not
accept any commitment through verbal agreements or those not adjusted to
the present General Conditions, unless otherwise previously agreed in
writing.
3.-
SHIPMENT AND DELIVERY
3.1.
SHIPPING DOCUMENT. All goods will be accompanied by a priced Shipping
Document or Delivery Note, clearly indicating our P.O. Nº and your
Supplier Code Nº previously assigned.
3.2.
PACKING. Price quoted in this Purchase Order include handling and
packing. All goods will be properly packed, so that they will be
handled, transported and stocked in perfect safe conditions.
3.3.
TRANSPORT AND INSURANCE. Insurance, if contracted, and transport fees,
will be paid by the Supplier. The Supplier will also be responsible of
the goods during transport, covering all expenses due to putative loss
or damage.
3.4.
DELIVERY. Shipment of the goods covered by this P.O. will be delivered
complete in a single shipment, i.e., including all the items of the P.O.
We do not accept partial deliveries unless otherwise instructed by
writing.
4.-
PRICES.
All
prices will be net and fixed for goods delivered at the place indicated
by KONIK-Tech, not accepting any extra increase on prices (packing,
transport, storage, taxes, etc.).
5.-
DELIVERY TIME AND PENALTIES
Delivery
time is an essential part of this Contract. Failing to meet the delivery
time, unless it is due to reasons beyond the Supplier’s control, and
always fully justified and informed time enough before to surpass the
delivery date, will allow KONIK-Tech to either cancel the P.O. or to
apply a penalty for delay. This penalty will be a 0.15% for every
delayed day, starting the next day after the expected date of delivery.
The maximum penalty for delay will be a 10% of the total of the P.O.
Still, KONIK-Tech keeps the right to be compensated for the damages
caused.
6.-
INVOICING AND PAYMENT
KONIK-Tech will always receive the Invoice within the following ten days
after the Invoice date. This date will never be previous to the date of
delivery of goods.
For each
P.O., a UNIQUE AND DUPLICATED INVOICE. We do not accept partial
Invoices. An Invoice must include References, Descriptions, Quantities,
Unit Price for each item, Total Price, tax (if apply) as well as our
P.O. Number, your Supplier Code and V.A.T number.
Invoice
payment will be made by Bank Draft at 90 days invoice date, issued the
20th of every month (unless other conditions were agreed by
both parties in writing). One Bank Draft will be made out for each
Invoice.
Any
Invoice that will fail to accomplish the above described, will be
returned for its correction. A new one will be drawn up with a new
date.
7.-
RECEPTION CONTROL
According
to our internal procedures and ISO 9001 Quality Control procedures, all
the goods received are inspected at its reception. All goods received
must meet all the requirements specified on the P.O. (quantity, quality,
specifications, etc.). When not, if considered necessary, they will be
returned to the Supplier, who will be responsible for putative returning
additional expenses. The Supplier will not substitute the goods unless
otherwise instructed.
8.-
GUARANTEE
The goods
will be guaranteed by the Supplier free from materials, workmanship or
manufacturing process defect, assembly or labour failure, for twelve
(12) months. The Supplier accepts, upon KONIK-Tech decision, to either
replace any defective material by a new one or to refund its cost,
including any extra charge due to any of the above mention failures. In
case of replacement, the Supplier agrees to extend the guarantee period
for the time delayed.
9.-
CANCELLATION OF ORDERS
By
accepting this P.O., both Parts agree to allow KONIK-Tech to cancel the
Order without any penalty, either if the delivery delay exceeds the
maximum accepted or if it is demonstrated that the Supplier cannot meet
the requirements or technical specifications previously agreed. In such
cases, KONIK-Tech will have the faculty to either cancel the contract,
or to demand its fulfilment, receiving the correspondent compensation
for it.
10.-
LEGISLATION
Any
possible litigation that may come across from the present P.O. will be
applied according to the Spanish Legislation.
TERMS AND CONDITIONS
FOR SALES AND SERVICE
The
present Terms and Conditions for Sales and Services will be applied to
the operations of Sales of Products, Support giving and Software licence
by KONIK-Tech.
1. DEFINITIONS
a) We
mean by “Annexes” the documents of description of Products, Support or
other commercial conditions that are applicable to the selling or the
Products licence or the giving Support services.
b) We
mean by “Prices list” the list of available Products and Support created
by KONIK-Tech, with the corresponding prices, in the places where the
Customer makes the order and where the delivery takes place.
c) We
understand that in “Products” are included the hardware, software,
options, documents, accessories, supplies, spares and improvements that
appear in the Prices List in the date KONIK-Tech receives the order from
the Customer. We mean by “Special Products” the Products that have been
modified unanimously to satisfy the changes requested by the Customer.
d) We
mean by “Software” one or more programs, able to operate in a computer,
processor or controller, that appear listed separately as Software
Product in the Prices List or included in it with another Product or
installed in the hardware in a fixed way in normal functioning
conditions.
e) We
understand that in “Support” are included the hardware maintenance and
reparation, the Software actualisations, the support and maintenance
services, consulting, formation and other support services offered by
KONIK-Tech.
2. PRICES
a) The
prices tendered to the Customer will be valid during the period
indicated in the offer or during the Order Period, in case one finishes
before the other.
b) The
prices include Products delivery, according to KONIK-Tech standard
conditions, in the area delivery in the country where the Customer makes
the order.
c)
Taxes are not included
in the prices and will be invoiced separately, if applicable.
d) The
prices of the Products will be valid from the date of the original order
until one hundred and eighty (180) days after. Changes in the orders
that prolong the delivery beyond these one hundred and eighty (180) days
from the date of the original order, will be understood as new orders to
which apply the current prices when KONIK-Tech receives the change in
the orders.
e) The
Support prices can be modified by Konik-Tech by means of a written
notification sixty (60) days in advance.
3. ORDERS
a) The
orders of Products have to specify a date for delivery comprised within
the following one hundred and eighty (180) days after the order.
b) Unless
something else is mutually decided, the Customer will have to specify in
the orders a place of delivery located in the country where the order is
made.
c) The
Customer will be responsible for the transport costs and the costs
originated from the devolution of the Products to the KONIK-Tech
shipping places, in case the Products would be cancelled after the
shipping. The Customer could be responsible of additional costs in case
of cancelling orders of Special Products. The Customer will be able to
ask the end of the giving Support service in relation to one or more
Products or cancel Support services, by means of a written notification
sixty (60) days in advance.
4. DELIVERY
Delivery remains
conditioned to the Products availability of KONIK-Tech when receiving
the order from the Customer. KONIK-Tech will do its best to fulfil its
duty with the tendered or requested dates of delivery. In case
KONIK-Tech lagged behind the delivery of Products during a period beyond
the following thirty (30) days to the agreed date of delivery, the
Customer will have the right to cancel, without any cost, the related
orders.
5. SHIPPING AND LOSS OR
DAMAGE RISK
a) KONIK-Tech
will ship according to the standard commercial practice of KONIK-Tech.
The Customer requests related to packing or special shipping
instructions will have to be previously agreed between the Parts. The
amount for these concepts will be invoiced to the Customer separately.
b) The
title deed upon the hardware Products and the loss or damage risk will
be transmitted to the Customer just after making the delivery in the
place agreed by the Parts. In case the Products would be shipped
following the Customer shipping instructions, the title deed and the
loss or damage risk will be transmitted to the Customer when the
Products are in the KONIK-Tech shipping area.
6.
INSTALLATION
a) The
Products installation classification is defined by means of codes that
appear in the KONIK-Tech Prices List. The installation, when included in
the sale price, will be understood as finished once the Product passes
the KONIK-Tech installation procedures and tests satisfactorily.
b) The
Customer’s Products acceptance will be understood as confirmed once the
installation by KONIK-Tech is finished - in the case of Products that
include installation in the sales price -, or when delivering - in the
case these Products do not include installation in the sale price. For
the Products that do not include installation in their sale price, the
Customer’s acceptance will be considered proved unless the Customer
declares, within the following fourteen (14) days after the delivery,
that the Products do not pass satisfactorily the programs or test
procedures established by KONIK-Tech.
c) If
KONIK-Tech is responsible for the installation and the Customer
schedules or delays the installation beyond thirty (30) days after the
delivery, the Customer’s Products acceptance will be assumed on the
thirty-first (31) day after the date of delivery.
7.
PAYMENT TERMS
a) Unless
a written agreement is conveyed, invoices have to be paid in a period of
thirty (30) days from the date of invoicing. The costs for the Support
services contracted by the Customer will be invoiced in advance.
KONIK-Tech saves its right to change the credit conditions without
notice.
b) KONIK-Tech
saves its faculty to solve unilaterally the present Contract in case the
Customer failed to observe the payment terms or any other obligation
corresponding to the present Contract or any other Contract signed with
KONIK-Tech. The unilateral solving will take place if KONIK-Tech makes a
written request to rectify the breach of contract and the Customer
persists after ten (10) days from the request.
8. SUPPORT
a) Support
orders imply the Customer’s acceptance of the terms and conditions of
the Annex regarding Support. This Annex is the one prevailing in the
date of the order and which terms and conditions are parts of the
present Contract.
b) Only
the Products that are in good functioning conditions and have followed
the revision levels specified by KONIK-Tech can have Support services.
The services carried out by KONIK-Tech to replace Products at such
conditions and levels, to put them in a suitable Support services level,
will be invoiced to the Customer according to the KONIK-Tech Prices List
prevailing when the Customer receives the order.
c) KONIK-Tech
saves its faculty to make as many modifications in the Products as it is
convenient to improve the functioning and liability or when such
modifications are required legally, without any charge for the Customer.
d) The
Customer will be responsible for the Products transfer from their
original location. In case of transfer and in view of the new location,
KONIK-Tech can charge the Customer with the additional tariffs regarding
the contracted services, as well as modify the answering times.
Continuity in service giving, in case of transferring the Products to
another country, remains conditioned to the existence of a KONIK-Tech
authorised service surveyor.
e) The
non-qualified Products are excluded from the service giving. Hardware
and Software not provided or approved by KONIK-Tech and Products to
which the Customer does not allow KONIK-Tech to introduce any
modification are considered “non-qualified Products”. Customer is
responsible for the removal of the non-qualified products in order to
permit KONIK-Tech to carry out the Support services. In case the
difficulties when giving a Support service increase because of the
existence of non-qualified products, KONIK-Tech will charge the Customer
the work overload to the KONIK-Tech standard tariffs.
f) Support
does not cover damages or failures caused by:
1) The
use of spares or physical support not branded as KONIK-Tech.
2) Conditions
in the place where the Product is located do not have the requirements
established by KONIK-Tech.
3) Negligence,
inappropriate using, damage caused by fire or water, electric
alterations, transport made by the Customer, works or modifications not
carried out by staff or subcontractors of KONIK-Tech, or any other
causes out of the control of KONIK-Tech.
g) The
Customer will be responsible of the confidential information of his
property, as well as the maintenance of a procedure external to the
Products that allows the reconstruction of files, data or programs lost
or altered. A representative of the Customer must be present when
KONIK-Tech renders its services. The Customer is obliged to notify to
KONIK-Tech, if this is the case, the use of Products in an environment
that can imply a potential risk for the health of the staff or the
subcontractors of KONIK-Tech. In this case, KONIK-Tech can insist on the
Customer carrying out the maintenance directly under KONIK-Tech
supervision.
9. GUARANTEE
a) KONIK-Tech
guarantees its hardware Products against materials or labour failures.
If KONIK-Tech receives a notification of such failures during the
guarantee period, KONIK-Tech can choose between mend them or substitute
them, after checking the faulty state of the product.
b) KONIK-Tech
guarantees its software against material or labour failures that prevent
from executing its programming instructions. This remains conditioned to
the fact that the Software is properly installed and is used in the
Product of hardware indicated by KONIK-Tech. If KONIK-Tech receives
notification of these failures during the guarantee period, KONIK-Tech
will mend or substitute the Software physical support that do not
execute its programming instructions due to such failures.
c) KONIK-Tech
does not guarantee that the Products running will be uninterrupted or
errors free. If KONIK-Tech could not mend or substitute any Product in
the guaranteed conditions within a reasonable period of time, the
Customer will have the right to the reimbursement of the selling price,
previously giving the Product back to KONIK-Tech.
d) The
Products have a standard guarantee, defined by the code that appears in
the KONIK-Tech Prices List applicable in the date KONIK-Tech receives
the order from the Customer, unless the Customer purchases an option or
a system that prevails upon the standard guarantee of the Product.
KONIK-Tech saves its right to change the guarantee code: in that case,
those changes would only affect to new orders. The guarantee period will
begin from the Product delivery date on, or from the installation date
on in case of being installed by KONIK-Tech. In case the Customer would
have programmed or delayed the installation to a date later than thirty
(30) days after the delivery date, then the guarantee period will start
on the thirty-first (31) day after the delivery date.
e) The
Customer can dispose of any of the Service or Reparation Centres
authorised by KONIK-Tech in the countries belonging to the “European
Economic Community” (EEC) and the “European Free Trade Association”
(EFTA). These Centres can be used for the guarantee services giving both
in the place of installation and in the same Service or Reparation
Centre.
f) Failures
originated from the Customer inadequate or inappropriate maintenance or
calibration are excluded from the guarantee. The Software surveyed by
the Customer, interfaces or supplies, non-authorised modifications or
inappropriate using, running out of the environmental specifications
published for the Product, or inadequate preparation or maintenance of
the place of installation on the part of the Customer are also
considered excluded from the guarantee.
g) APART
FROM THE PREVIOUSLY INDICATED, KONIK-Tech DOES NOT ASSUME ANY OTHER
GUARANTEE COMPROMISE, WRITTEN OR VERBAL, EXPLICIT OR IMPLICIT.
KONIK-Tech DIRECTLY EXPRESSES THAT MARKETABILITY OR SUITABILITY FOR ANY
SPECIFIC AND PARTICULAR APPLICATION ARE NOT GUARANTEED.
IMPORTANT: Some of the
Products and the Support that appear in the present General Terms and
Conditions for Sales and Services, are imported under a special
Distribution licence given by the U.S. authorities responsible for the
control of the exports. There is the condition of not being re-exported
without the previous authorisation of the authorities. In the same way,
the regulations on foreign trade for defence material and double-use
material contained in the Spanish Real Decreto 824/1993 of the 28th
of May, its complementary regulations and/or the one that in the future
could substitute it or complement it, must be observed. The Customer, on
accepting the Products and the Support, also accepts the fulfilment of
the obligations that appear on the present dispositions.
10. LICENCES
a) In
this section concerning to Licences, we mean by “USE” the storing, load,
installation, execution or display exhibition of the Software in a
computer, processor or controller, or the copying of the Software
exclusively for files or security purposes.
b) For
the payment of the corresponding price, KONIK-Tech grants the Customer
with a non-exclusive licence for the use of a copy of the Software
detailed in the order of the Customer. This licence is in compliance
with the terms of the applicable Licence of Software according to what
is specified in the Prices List. The terms of the KONIK-Tech Standard
Licences of Software are specified below. Other categories of Licences
of Software are available depending on the Software. In the case a
Licence is not specified for the Software for the payment of the
corresponding price, KONIK-Tech grants the Customer with a licence for
the Use of a copy of the Software in only one computer, processor or
controller, independently when it is used.
“SYSTEM LICENCE”: The Customer will be able to use the software at any
moment:
1)
In only one computer or
processor (System Basic Licence).
2)
In any computer or
processor belonging to only one type of computers or processors (Type
Licence).
3)
In an individualised
and registered computer or processor (Node Licence).
Some System licences can be limited to a maximum number of users,
according to what the Prices List details.
“CONCURRENT USER LICENCE”: A number of identified users can Use the
Software at the same time at any moment.
“TEMPORAL LICENCE”: The Customer can Use the Software only during a
certain period of time.
“RUNTIME LICENCE”: The Customer can Use the Software only with regard to
its execution capabilities, but not with regard to its programming
capabilities.
c) KONIK-Tech
grants the Customer with a licence for the Use of Software installed in
the Hardware in a fixed way in conditions of normal functioning. It is
only with regard to its running in the Product associated in the set up
in which the Product has been sold or improved by KONIK-Tech afterwards.
The Customer will be able to transfer the referred Software only if it
is transferred together with the associated hardware product.
d) The
licences specified below are available for certain Software in case it
is indicated in the Prices List and on payment of the corresponding
price:
1) The
Customer can make a copy of the Software licensed directly by KONIK-Tech
and make Use of it.
2) The
Customer can sublicense a copy of the Software to a final user to make
Use of it or to a reseller authorised by KONIK-Tech for its subsequent
distribution to a final user to make Use of it. Such sublicences must
incorporate the conditions contained in section 10, by means of a
sublicense contract regularised in writing and of compulsory fulfilment
by the parts. This contract has to be at the disposal of KONIK-Tech if
required.
The
Use of Software authorisation/s will be also applicable to copies of
Software made under the protection of the referred licences.
e) The
License of the Customer does not include the right to modernisation,
improvement or similar. KONIK-Tech saves its right to request the
Customer the contracting of an additional licence with its corresponding
price, in case the Customer would like to make Use of the Software in
computers, processors or controllers that have been improved.
f) The
Software installed in a Product of hardware and sold together with it,
can only be used in that Product in the set up specifically sold by
KONIK-TECH or with the subsequent improvements made by KONIK-Tech.
g) The
License of the Customer does not give titularity or property upon the
Software, or any of the rights related with the source code, and it will
not be understood as a transmission of any of the rights upon the
Software.
h) The
Customer cannot disassemble or discompile the Software without the
written authorisation of KONIK-Tech, unless the law does not require it.
If KONIK-Tech requires so, the Customer will give reasonably detailed
information about any disassembling or discompilation.
i) The
Customer can hand over the thorough licence of Software in case of being
authorised by writing by KONIK-Tech and on payment of the applicable
price of granting to KONIK-Tech. After the granting, the Customer will
immediately give back all the copies of the Software to the grantee of
the licence of the Customer authorised by KONIK-Tech. The grantee will
have to accept in writing the licence of the Customer conditions. All
the conditions of the licence of the Customer will be of compulsory
fulfilment by the involuntary grantees. In case of any granting, the
licence of the Customer will expire automatically.
j) The
third-part suppliers of Software can protect their rights against
infringement of their royalties or violations of the licence of the
Customer.
k) KONIK-Tech
can finish the licence of the Customer or any grantee or subgrantee in
case of any kind of non-fulfilment of the applicable licence. The
resolution of the licence can be effective from the very moment in which
KONIK-Tech notifies the non-fulfilment to the beneficiary of the
licence. In case of finishing the licence of the Customer because of any
other reason, the Customer will have to destroy or give back to
KONIK-Tech the Software and all the copies immediately. Thus, the
Customer will have to eliminate and destroy all the copies of the
Software included in one adaptation, except for the individualised data
fragments of the Customer from the corresponding database. After the
termination, the Customer can keep a copy of the Software for file
purposes, in case of having the written consent of KONIK-Tech.
11. COPYRIGHT
a) KONIK-Tech
will defend any reclamation and will attend the Customer in any
proceeding that assures that any Product or Support services supplied by
KONIK-Tech breaks any patent, utility model, industrial design, royalty
or brand in the country where the Customer makes use of the Products or
receives the Support, on condition that the Customer:
1)
Notifies to KONIK-Tech
in writing the existence of the reclamation immediately; and
2) Co-operates
with KONIK-Tech and gives to KONIK-Tech the exclusive authority to
charge with the defence of the reclamation and any transaction related
to it.
b) KONIK-Tech
will bear the expenses of those proceedings and transactions and any
expense or damages compensation to which the Customer could be condemned
by the tribunal. If the Customer received a reclamation of this kind or
the possibility of its presentation existed, KONIK-Tech will be able to
choose between expediting the Customer with the right to continue using
the Product, modify it or replace it. In the case the use of the Product
were forbidden by a Tribunal or KONIK-Tech considered that any of the
alternatives above mentioned could not be reasonably carried out,
KONIK-Tech will reimburse the Customer with the Product residuary value
on devolution of it.
c) KONIK-Tech
will not be responsible in case these reclamations or infractions have
their origin in:
1) the
case KONIK-Tech complies with the designs, specifications or
instructions requested by the Customer;
2) modifications
of the Product by the Customer or a third-part;
3) the
use of the Product outside the KONIK-Tech specifications;
4) the
use of the Product with products non-surveyed by KONIK-Tech.
d) In
the case KONIK-Tech surveys the Product for a resale, the Customer
rights and obligations will extend to the territory where the Customer
is authorised to resell the Product branded KONIK-Tech and to anyone
whom the Customer resells the Product.
e) The
here-contained stipulations constitute the total responsibilities of
KONIK-Tech with regard to reclamations for infractions of the Products
or Support services surveyed by KONIK-Tech.
12. ACTIONS AND
RESPONSIBILITY LIMITATIONS
a) KONIK-Tech
will not be responsible for delays in the fulfilment or non-fulfilment,
for causes beyond to its reasonable control.
b) Products
are not specifically designed, made or planned to sell them as parts,
components or elements in the planning, construction, maintenance or
direct functioning of a nuclear installation. The Customer will be the
only responsible if the acquired Products or Support are used in the
above mentioned nuclear applications. The Customer will have to
indemnify and keep KONIK-Tech undamaged of any kind of loss, damages,
expenses or responsibility with origin or related with the referred
using.
c) KONIK-Tech’s
responsibility in case of accident, by way of damage in the items, is
limited to the exchange value of Pts 300.000,- or equivalent in US
dollars or to the real quantities paid to KONIK-Tech for the Product
that is object of reclamation if such quantities are higher than the
above mentioned value. The former limitation will not be applicable to
KONIK-Tech’s responsibility for damage to people with death or injuries
effects. The former responsibilities will be assumed according to
whether a Tribunal considers that a faulty Product, sold according to
the present conditions, has directly caused the referred damages to
people or items.
d) In
case of any significant non-fulfilment in the Support services given by
KONIK-Tech, the Customer’s actions and KONIK-Tech’s responsibility will
be limited to the reimbursement to the Customer of a quantity equivalent
to the amount of the services. This amount is referred to the quantity
paid during the period of non-fulfilment and with a maximum amount limit
corresponding to twelve (12) months.
e) THE
ACTIONS AND RIGHTS CONTEMPLATED IN THE PRESENT CONTRACT ARE THE ONLY
ONES THAT CORRESPOND TO THE CUSTOMER. IN ANY CASE, WITH THE ABOVE
MENTIONED EXCEPTIONS, KONIK-Tech OR ITS SUBCONTRACTORS WILL BE
RESPONSIBLE FOR LOSS OF DATA OR ANY OTHER DIRECT DAMAGE, SPECIALLY
INCIDENTAL, CONSEQUENTIAL (INCLUDING REDUNDANT PROFIT) OR OF ANY OTHER
KIND, EITHER BY A CONTRACTUAL OR EXTRACONTRACTUAL RESPONSIBILITY.
13. DIFFERENT
STIPULATIONS
a) Some
new products can contain certain recycled pieces that, because of their
functioning features, are equivalent to new pieces. The pieces used in
the service giving will be new or equivalent.
b) The
Products classified by KONIK-Tech as “Used” will not be considered as
“New” or “Original Use” for tax purposes.
c) The
nullity or invalidity of any of the stipulations contained in the
present Terms and General Conditions for Sales and Service will not
affect the subsistence or validity of the rest of the stipulations.
d) In
case one of the Parts were in a bankruptcy situation, were not able to
meet the expense of its obligations, were in a suspension of payments or
a crack (voluntary or not), were nominated a judicial administrator or
made surrender of properties, the other Part could release itself from
the fulfilment of the remaining obligations.
e) None
of the Parts will be able to hand over the rights or obligations that
belong to it according to this Contract, without having the previous
written consent of the other Part. However, KONIK-Tech is authorised to
hand over to third-parts, freely, any of the credit rights in front of
the Customer in consequence to this Contract.
f) The
non-fulfilment of any of the rights that correspond to the Parts
according to this Contract will not constitute or be interpreted as a
resignation of the final agreement or the loss of such rights.
g) The
rules related to administrative contracting, conditions and general
administrative clauses will not be binding on any of the Parts, unless
the Law established something else or were collected in the present
Contract.
h) The
Customer who exports the Products assumes the responsibility for the
observance of any of the applicable norms, being responsible of
obtaining the required export and import authorisations. The Customer
cannot export or re-export the Products or any technical data, if
violating the applicable norms.
i) Any
possible litigation that may come across from the present Contract will
be applied with the Spanish legislation.
j) The
stipulations contained in sections 9 to 12 will remain effective after
the sale or the licence of Products delivery. In the same way, all the
stipulations related to Support services request which duration period
would not have ended will remain effective.
k) The
present Terms and Conditions for Sale and Service and any other attached
documents constitute the complete agreement between the Customer and
KONIK-Tech in relation to the transactions that appear in those
documents. They will prevail over any communication, declaration or
previous agreement between the Parts, oral or written, related to the
referred transactions. Any other additional or different from the ones
here expressed terms or conditions of the Customer will not be
applicable. The acquisition or licence of Products and Support by the
Customer constitutes the acceptance of the present Terms and Conditions
for Sale and Service by the Customer. They cannot be altered except by
means of a modifying document signed by an authorised representative of
each of the Parts.
TERMS AND
CONDITIONS FOR SALES AND SERVICE
The present Terms and Conditions for Sales and Services will be
applied to the operations of Sales of Products, Support giving and
Software licence by KONIK-Tech.
1.
DEFINITIONS
a)
We
mean by “Annexes” the documents of description of Products, Support or
other commercial conditions that are applicable to the selling or the
Products licence or the giving Support services.
b) We
mean by “Prices list” the list of available Products and Support created
by KONIK-Tech, with the corresponding prices, in the places where the
Customer makes the order and where the delivery takes place.
c) We
understand that in “Products” are included the hardware, software,
options, documents, accessories, supplies, spares and improvements that
appear in the Prices List in the date KONIK-Tech receives the order from
the Customer. We mean by “Special Products” the Products that have been
modified unanimously to satisfy the changes requested by the Customer.
d) We
mean by “Software” one or more programs, able to operate in a computer,
processor or controller, that appear listed separately as Software
Product in the Prices List or included in it with another Product or
installed in the hardware in a fixed way in normal functioning
conditions.
e) We
understand that in “Support” are included the hardware maintenance and
reparation, the Software actualisations, the support and maintenance
services, consulting, formation and other support services offered by
KONIK-Tech.
2.
PRICES
a) The
prices tendered to the Customer will be valid during the period
indicated in the offer or during the Order Period, in case one finishes
before the other.
b)
The prices include Products delivery, according to KONIK-Tech standard
conditions, in the area delivery in the country where the Customer makes
the order.
c) Taxes
are not included in the prices and will be invoiced separately, if
applicable.
d) The
prices of the Products will be valid from the date of the original order
until one hundred and eighty (180) days after. Changes in the orders
that prolong the delivery beyond these one hundred and eighty (180) days
from the date of the original order, will be understood as new orders to
which apply the current prices when KONIK-Tech receives the change in
the orders.
e) The
Support prices can be modified by Konik-Tech by means of a written
notification sixty (60) days in advance.
3. ORDERS
a) The
orders pof Products have to specify a date for delivery comprised within
the following one hundrer and eighty (180) days after the order.
b) Unless
something else is mutually decided, the Customer will have to specify in
the orders a place of delivery located in the country where the order is
made.
c) The
Customer will be responsible for the transport costs and the costs
originated from the devolution of the Products to the KONIK-Tech
shipping places, in case the Products would be cancelled after the
shipping. The Customer could be responsible of additional costs in case
of cancelling orders of Special Products. The Customer will be able to
ask the end of the giving Support service in relation to one or more
Products or cancel Support services, by means of a written notification
sixty (60) days in advance.
4.
DELIVERY
Delivery remains conditioned to the Products availability of KONIK-Tech
when receiving the order from the Customer. KONIK-Tech will do its best
to fulfil its duty with the tendered or requested dates of delivery. In
case KONIK-Tech lagged behind the delivery of Products during a period
beyond the following thirty (30) days to the agreed date of delivery,
the Customer will have the right to cancel, without any cost, the
related orders.
5.
SHIPPING AND LOSS OR DAMAGE RISK
a) KONIK-Tech
will ship according to the standard commercial practice of KONIK-Tech.
The Customer
requests related to packing or special shipping instructions will have
to be previously agreed between the Parts. The amount for these concepts
will be invoiced to the Customer separately.
b) The
title deed upon the hardware Products and the loss or damage risk will
be transmitted to the Customer just after making the delivery in the
place agreed by the Parts. In case the Products would be shipped
following the Customer shipping instructions, the title deed and the
loss or damage risk will be transmitted to the Customer when the
Products are in the KONIK-Tech shipping area.
6.
INSTALLATION
a) The
Products installation classification is defined by means of codes that
appear in the KONIK-Tech Prices List. The installation, when included in
the sale price, will be understood as finished once the Product passes
the KONIK-Tech installation procedures and tests satisfactorily.
b) The
Customer’s Products acceptance will be understood as confirmed once the
installation by KONIK-Tech is finished - in the case of Products that
include installation in the sales price -, or when delivering - in the
case these Products do not include installation in the sale price. For
the Products that do not include installation in their sale price, the
Customer’s acceptance will be considered proved unless the Customer
declares, within the following fourteen (14) days after the delivery,
that the Products do not pass satisfactorily the programs or test
procedures established by KONIK-Tech.
c) If
KONIK-Tech is responsible for the installation and the Customer
schedules or delays the installation beyond thirty (30) days after the
delivery, the Customer’s Products acceptance will be assumed on the
thirty-first (31) day after the date of delivery.
7.
PAYMENT TERMS
a) Unless
a written agreement is conveyed, invoices have to be paid in a period of
thirty (30) days from the date of invoicing. The costs for the Support
services contracted by the Customer will be invoiced in advance.
KONIK-Tech saves its right to change the credit conditions without
notice.
b) KONIK-Tech
saves its faculty to solve unilaterally the present Contract in case the
Customer failed to observe the payment terms or any other obligation
corresponding to the present Contract or any other Contract signed with
KONIK-Tech. The unilateral solving will take place if KONIK-Tech makes a
written request to rectify the breach of contract and the Customer
persists after ten (10) days from the request.
8.
SUPPORT
a) Support
orders imply the Customer’s acceptance of the terms and conditions of
the Annex regarding Support. This Annex is the one prevailing in the
date of the order and which terms and conditions are parts of the
present Contract.
b) Only
the Products that are in good functioning conditions and have followed
the revision levels specified by KONIK-Tech can have Support services.
The services carried out by KONIK-Tech to replace Products at such
conditions and levels, to put them in a suitable Support services level,
will be invoiced to the Customer according to the KONIK-Tech Prices List
prevailing when the Customer receives the order.
c) KONIK-Tech
saves its faculty to make as many modifications in the Products as it is
convenient to improve the functioning and liability or when such
modifications are required legally, without any charge for the Customer.
d) The
Customer will be responsible for the Products transfer from their
original location. In case of transfer and in view of the new location,
KONIK-Tech can charge the Customer with the additional tariffs regarding
the contracted services, as well as modify the answering times.
Continuity in service giving, in case of transferring the Products to
another country, remains conditioned to the existence of a KONIK-Tech
authorised service surveyor.
e) The
non-qualified Products are excluded from the service giving. Hardware
and Software not provided or approved by KONIK-Tech and Products to
which the Customer does not allow KONIK-Tech to introduce any
modification are considered “non-qualified Products”. Customer is
responsible for the removal of the non-qualified products in order to
permit KONIK-Tech to carry out the Support services. In case the
difficulties when giving a Support service increase because of the
existence of non-qualified products, KONIK-Tech will charge the Customer
the work overload to the KONIK-Tech standard tariffs.
f) Support
does not cover damages or failures caused by:
1) The
use of spares or physical support not branded as KONIK-Tech.
2) Conditions
in the place where the Product is located do not have the requirements
established by KONIK-Tech.
3) Negligence,
inappropriate using, damage caused by fire or water, electric
alterations, transport made by the Customer, works or modifications not
carried out by staff or subcontractors of KONIK-Tech, or any other
causes out of the control of KONIK-Tech.
g) The
Customer will be responsible of the confidential information of his
property, as well as the maintenance of a procedure external to the
Products that allows the reconstruction of files, data or programs lost
or altered. A representative of the Customer must be present when
KONIK-Tech renders its services. The Customer is obliged to notify to
KONIK-Tech, if this is the case, the use of Products in an environment
that can imply a potential risk for the health of the staff or the
subcontractors of KONIK-Tech. In this case, KONIK-Tech can insist on the
Customer carrying out the maintenance directly under KONIK-Tech
supervision.
9.
GUARANTEE
a) KONIK-Tech
guarantees its hardware Products against materials or labour failures.
If KONIK-Tech receives a notification of such failures during the
guarantee period, KONIK-Tech can choose between mend them or substitute
them, after checking the faulty state of the product.
b) KONIK-Tech
guarantees its software against material or labour failures that prevent
from executing its programming instructions. This remains conditioned to
the fact that the Software is properly installed and is used in the
Product of hardware indicated by KONIK-Tech. If KONIK-Tech receives
notification of these failures during the guarantee period, KONIK-Tech
will mend or substitute the Software physical support that do not
execute its programming instructions due to such failures.
c) KONIK-Tech
does not guarantee that the Products running will be uninterrupted or
errors free. If KONIK-Tech could not mend or substitute any Product in
the guaranteed conditions within a reasonable period of time, the
Customer will have the right to the reimbursement of the selling price,
previously giving the Product back to KONIK-Tech.
d) The
Products have a standard guarantee, defined by the code that appears in
the KONIK-Tech Prices List applicable in the date KONIK-Tech receives
the order from the Customer, unless the Customer purchases an option or
a system that prevails upon the standard guarantee of the Product.
KONIK-Tech saves its right to change the guarantee code: in that case,
those changes would only affect to new orders. The guarantee period will
begin from the Product delivery date on, or from the installation date
on in case of being installed by KONIK-Tech. In case the Customer would
have programmed or delayed the installation to a date later than thirty
(30) days after the delivery date, then the guarantee period will start
on the thirty-first (31) day after the delivery date.
e) The
Customer can dispose of any of the Service or Reparation Centres
authorised by KONIK-Tech in the countries belonging to the “European
Economic Community” (EEC) and the “European Free Trade Association”
(EFTA). These Centres can be used for the guarantee services giving both
in the place of installation and in the same Service or Reparation
Centre.
f) Failures
originated from the Customer inadequate or inappropriate maintenance or
calibration are excluded from the guarantee. The Software surveyed by
the Customer, interfaces or supplies, non-authorised modifications or
inappropriate using, running out of the environmental specifications
published for the Product, or inadequate preparation or maintenance of
the place of installation on the part of the Customer are also
considered excluded from the guarantee.
g) APART
FROM THE PREVIOUSLY INDICATED, KONIK-Tech DOES NOT ASSUME ANY OTHER
GUARANTEE COMPROMISE, WRITTEN OR VERBAL, EXPLICIT OR IMPLICIT.
KONIK-Tech DIRECTLY EXPRESSES THAT MARKETABILITY OR SUITABILITY FOR ANY
SPECIFIC AND PARTICULAR APPLICATION ARE NOT GUARANTEED.
IMPORTANT: Some of the Products and the Support that appear in the
present General Terms and Conditions for Sales and Services, are
imported under a special Distribution licence given by the U.S.
authorities responsible for the control of the exports. There is the
condition of not being re-exported without the previous authorisation of
the authorities. In the same way, the regulations on foreign trade for
defence material and double-use material contained in the Spanish Real
Decreto 824/1993 of the 28th of May, its complementary
regulations and/or the one that in the future could substitute it or
complement it, must be observed. The Customer, on accepting the Products
and the Support, also accepts the fulfilment of the obligations that
appear on the present dispositions.
10. LICENCES
a) In
this section concerning to Licences, we mean by “USE” the storing, load,
installation, execution or display exhibition of the Software in a
computer, processor or controller, or the copying of the Software
exclusively for files or security purposes.
b) For
the payment of the corresponding price, KONIK-Tech grants the Customer
with a non-exclusive licence for the use of a copy of the Software
detailed in the order of the Customer. This licence is in compliance
with the terms of the applicable Licence of Software according to what
is specified in the Prices List. The terms of the KONIK-Tech Standard
Licences of Software are specified below. Other categories of Licences
of Software are available depending on the Software. In the case a
Licence is not specified for the Software for the payment of the
corresponding price, KONIK-Tech grants the Customer with a licence for
the Use of a copy of the Software in only one computer, processor or
controller, independently when it is used.
“SYSTEM LICENCE”: The Customer will be able to use the software at any
moment:
1) In
only one computer or processor (System Basic Licence).
2) In
any computer or processor belonging to only one type of computers or
processors (Type Licence).
3) In
an individualised and registered computer or processor (Node Licence).
Some System licences can be limited to a maximum number of users,
according to what the Prices List details.
“CONCURRENT USER LICENCE”: A number of identified users can Use the
Software at the same time at any moment.
“TEMPORAL LICENCE”: The Customer can Use the Software only during a
certain period of time.
“RUNTIME LICENCE”: The Customer can Use the Software only with regard to
its execution capabilities, but not with regard to its programming
capabilities.
c) KONIK-Tech
grants the Customer with a licence for the Use of Software installed in
the Hardware in a fixed way in conditions of normal functioning. It is
only with regard to its running in the Product associated in the set up
in which the Product has been sold or improved by KONIK-Tech afterwards.
The Customer will be able to transfer the referred Software only if it
is transferred together with the associated hardware product.
|