EMEA ELECTRO SOLUTIONS S.L., with a team with over 20 years’ experience in the electronics market, has made a priority commitment to its customers. Our mission is to provide the best solutions in electronics, microelectronics and automation that satisfy the most demanding needs of our customers and contribute to the continuous improvement of their products and processes.

Scope of Application

1. The following General Terms and Conditions (Terms and Conditions) of EMEA ELECTROSOLUTIONS, S.L. (hereinafter referred to as «EMEA») shall apply mandatorily. Terms and conditions of the customer that are contrary to or deviate from the Terms and Conditions of EMEA shall not be deemed accepted, unless EMEA expressly consents to their validity in writing. EMEA’s Terms and Conditions shall also apply if EMEA performs the delivery or the services vis- à-vis the customer without reservation in full awareness of contradictory or deviating terms and conditions of the customer.

Whenever the manufacturer of the Equipment has a binding General Terms and Conditions of Sale, the Customer acknowledges and accepts that whenever those are more restrictive shall be binding for the customer.

Definitions

2. In these General Conditions the following terms shall have the meanings hereunder assigned to them:

« Contract » : the agreement In Writing between the parties concerning supply of the Equipment and all appendices, including agreed amendments and additions In Writing to the said documents.

« Contract Price » : the agreed price, which shall be either a fixed price or, in case the parties have specifically agreed on a price revision clause, the revised price.

« Customer » : the buyer of the Equipment sold by EMEA.

« Day » : any reference shall be made to calendar days.

« Equipment » : the object(s) to be supplied under the Contract, including software and documentation.

« Gross Negligence » : a deliberate or reckless failure to take such care as is obviously required in the circumstances to avoid serious consequences for the other party.

« In Writing » : communication by document signed by both parties or by letter, electronic mail, fax and by such other means as are agreed by the parties.

« Shipping Date » : the day following the date on which EMEA has notified the Customer the Equipment being ready and available to be collected at the agreed place.

Equipment Information/Instructions

3. All information and data contained in general Equipment documentation and price lists, regardless of form, shall be binding only to the extent that they are by reference In Writing expressly included in the Contract.

4. EMEA shall, not later than at the date of delivery, provide free of charge information and drawings which are necessary to permit the Customer to install, commission, operate and maintain the Equipment. Such information and drawings shall be supplied as one paper copy of each and also electronically. EMEA shall not be obliged to provide manufacturing drawings for the Equipment or for spare parts.

Intellectual Property and Confidentiality

5. All intellectual property rights in the Equipment, including in any embedded software, and in any technical information relating to the Equipment, shall rest with EMEA, the software provider or, in the appropriate case, with a third party which has licensed EMEA to sublicense these rights. Subject to any limitations that may have been agreed between the third party and EMEA, the Customer shall acquire a non-exclusive, non-transferable right to use these intellectual property rights, but limited to the extent required by the purpose of the Contract. EMEA shall not be obliged to provide the Customer with the source code or with updates for any embedded software. This clause shall also apply when the Equipment and/or software has been specifically developed for the Customer, unless otherwise agreed In Writing.

6. Technical, commercial and financial information and information, which has been declared as confidential or which must by its very nature be deemed to be confidential, disclosed In Writing or orally by one party to the other, shall be treated confidentially. The information shall therefore not without the consent of the disclosing party In Writing be used for any other purpose than that for which it was provided. It may not, without the consent of the disclosing party In Writing, be transmitted, communicated or otherwise disclosed to a third party. EMEA is entitled to process and store the data of the customer received as part of the business relationships to the extent this seems reasonable within the framework of the contract.

Pre-Acceptance and Acceptance Tests

7. Pre-Acceptance Test shall, unless otherwise agreed, be carried out at the facilities of the manufacturer during normal working hours. If the Contract does not specify the technical requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned according to manufacturer’s country.

7.bis. Acceptance tests provided for in the Contract shall, unless otherwise agreed, be carried out at the facilities of the Customer during normal working hours. If the Contract does not specify the technical requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in Spain.

8. EMEA shall notify the Customer In Writing of the tests in sufficient time to permit the Customer to be represented at the tests. If the Customer is not represented, the test report shall be sent to the Customer and shall be accepted as accurate.

9. If the tests show the Equipment not to be in accordance with the Contract, EMEA shall without delay remedy any deficiencies in order to ensure that the Equipment complies with the Contract. New tests shall then be carried out at the Customer’s request, unless the deficiency was insignificant.

10. The Customer shall bear all costs for tests carried out. EMEA shall however bear all travelling and living expenses for his representatives in connection with such tests.

Delivery. Passing of Risk

11. Any agreed trade term shall be construed in accordance with the INCOTERMS® in force at the formation of the Contract.

If no trade term has been specifically agreed, the delivery shall be Ex-Works (Ex-W) at the place of manufacture of the Equipment. Partial delivery shall be permitted, unless expressly forbidden by both parties In Writing.

Time for Delivery. Delay

12. Delivery and performance periods indicated by EMEA shall be non-binding, unless EMEA expressly confirms the exact date of delivery or performance In Writing. If the parties, instead of specifying the date for delivery, have specified a period of time within which delivery shall take place, such period shall start to run as soon as the Contract is entered into and all agreed preconditions to be met by the Customer have been fulfilled, such as official formalities, payments due at the formation of the Contract and securities.

13. If EMEA anticipates that he will not be able to deliver the Equipment at the time for delivery, he shall forthwith notify the Customer thereof In Writing, stating the reason and, if possible, the time when delivery can be expected.

14. If delay in delivery is caused by any of the circumstances mentioned in Clause 44, by an act or omission on the part of the Customer, including suspension under Clauses 20 and 47, or any other circumstances attributable to the Customer, EMEA shall be entitled to extend the time for delivery by a period which is necessary having regard to all the circumstances of the case. This provision shall apply regardless of whether the reason for the delay occurs before or after the agreed time for delivery.

15. EMEA is entitled to place partial deliveries.

16. If the Customer anticipates that he will be unable to accept delivery of the Equipment at the time for delivery, he shall forthwith notify EMEA In Writing thereof, stating the reason and, if possible, the time when he will be able to accept delivery. If the Customer fails to accept delivery at the time for delivery for a reason which is not attributable to EMEA, he shall nevertheless pay any part of the Contract Price which becomes due at the time for delivery, as if delivery had taken place at the time for delivery. EMEA shall arrange for storage of the Equipment at the risk and expense of the Customer. EMEA shall also, if the Customer so requires, insure the Equipment at the Customer’s expense.

17. Unless the Customer’s failure to accept delivery is due to any of the circumstances mentioned in Clause 44, EMEA may by notice In Writing require the Customer to accept delivery within a final reasonable period. If, for a reason which is not attributable to EMEA and not the result of any of the circumstances mentioned in Clause 44, the Customer fails to accept delivery within such period, EMEA may by notice In Writing terminate the Contract in whole or in part. EMEA shall then be entitled to compensation for the loss he suffers by reason of the Customer’s default, including any consequential and indirect loss. The compensation shall not exceed that part of the Contract Price which is attributable to that part of the Equipment in respect of which the Contract is terminated.

Payment

18. Payment shall be made within thirty days after the date of invoice. Unless otherwise agreed, the Contract Price shall be invoiced with one third at the formation of the Contract and the remaining part when the Equipment is delivered.

19. Whatever the means of payment used, payment shall not be deemed to have been effected before EMEA’s account has been irrevocably credited for the amount due.

20. If the Customer fails to pay by the stipulated date, EMEA shall be entitled to interest from the day on which payment was due and to compensation for recovery costs. The rate of interest shall be as agreed between the parties or otherwise 8 percentage points above the interest rate of the European Central Bank for the main refinancing operations (MRO). The compensation for recovery costs shall be 1 per cent of the amount for which interest for late payment becomes due.

In case of late payment or in case the Customer fails to give an agreed security by the stipulated date EMEA may, after having notified the Customer In Writing, suspend his performance of the Contract until he receives payment or, where appropriate, until the Customer gives the agreed security.

If the Customer has not paid the amount due within three months EMEA shall be entitled to terminate the Contract by notice In Writing to the Customer and, in addition to the interest and compensation for recovery costs according to this clause, to claim compensation for the costs and loss he incurs, including indirect and consequential loss.

Retention of title

21. The Equipment shall remain the property of EMEA until paid for in full. The Customer shall at the request of EMEA assist him in taking any measures necessary to protect EMEA’s title to the Equipment.

The retention of title shall not affect the passing of risk under Clause 11.

Liability for defects

22. The Equipment shall be in conformity with the Contract. Pursuant to the provisions of this clause and Clauses 22-41, EMEA shall remedy any defect in or nonconformity of the Equipment (hereinafter termed defect) resulting from faulty design, materials or workmanship.

23. EMEA shall not be liable for defects arising out of a design, materials or production methods provided, stipulated or specified by the Customer.

24. EMEA shall only be liable for defects which appear under the conditions of operation provided for in the Contract and under proper use of the Equipment.

25. EMEA shall not be liable for defects caused by circumstances which arise after the risk has passed to the Customer, e.g. defects due to faulty or incorrect installation, maintenance or repair, or to any alteration, carried out by the Customer or by a third party on behalf of the Customer. EMEA shall neither be liable for normal wear and tear nor for deterioration.

26. EMEA’s liability shall be limited to defects which appear within a period of one year from delivery. If the use of the Equipment exceeds that which is agreed, this period shall be reduced proportionately.

27. When a defect in a part of the Equipment has been remedied, EMEA shall be liable for defects in the repaired part or in the part in replacement under the same terms and conditions as those applicable to the original Equipment for a period of one year. For the remaining parts of the Equipment, the period mentioned in Clause 26 shall be extended only by a period equal to the period during which and to the extent that the Equipment could not be used as a result of the defect.

EMEA shall not be liable for defects in any part of the Equipment for more than one year from the end of the liability period referred to in Clause 26 or from the end of any other liability period agreed upon by the parties.

28. The Customer shall without undue delay notify EMEA In Writing of any defect which appears. The notice shall contain a description of the defect. Such notice shall under no circumstances be given later than two weeks after the expiry of the period given in Clause 26 or the extended period(s) under Clause 27, where applicable.

If the Customer fails to notify EMEA In Writing of a defect within the time limits set forth in the first paragraph of this clause, he shall lose his right to have the defect remedied and any other rights in respect of the defect. Where the defect is such that it may cause damage, the Customer shall immediately notify EMEA In Writing. The Customer shall bear the risk of damage to the Equipment resulting from his failure so to notify. The Customer shall take reasonable measures to minimise damage and shall in that respect comply with instructions of EMEA.

29. On receipt of the notice under Clause 28, EMEA shall at his own cost remedy the defect without undue delay, as stipulated in Clauses 22-42. The time for remedial work shall be chosen in order not to interfere unnecessarily with the Customer’s activities.

Remedial work shall be carried out at the place where the Equipment is located unless EMEA deems it more appropriate that the Equipment is sent to him or a destination specified by him.

If the defect can be remedied by replacement or repair of a defective part and if dismantling and re-installation of the part do not require special knowledge, EMEA may demand that the defective part is sent to him or a destination specified by him. In such case EMEA shall have fulfilled his obligations in respect of the defect when he delivers a duly repaired part or a part in replacement to the Customer.

30. The Customer shall at his own expense provide access to the Equipment and arrange for any intervention in equipment other than the Equipment, to the extent that this is necessary to remedy the defect.

31. Unless otherwise agreed, necessary transport of the Equipment or parts thereof to and from EMEA in connection with the remedying of defects for which EMEA is liable shall be at the risk and expense of EMEA. The Customer shall follow EMEA’s instructions regarding such transport.

32. Unless otherwise agreed, the Customer shall bear any additional costs which EMEA incurs for remedying the defect caused by the Equipment being located in a place other than the place specified in the Contract for putting the Equipment into service, or if not specified, the place of delivery.

33. Defective parts which have been replaced shall be made available to EMEA and shall be his property.

34. If the Customer has given such notice as mentioned in Clause 28 and no defect is found for which EMEA is liable, EMEA shall be entitled to compensation for the costs he incurs as a result of the notice.

35. If EMEA does not fulfil his obligations under Clause 29 or 41, the Customer may by notice In Writing fix a final reasonable period for completion of EMEA’s obligations, which shall not be less than one week.

If EMEA continues failing to fulfil his obligations within such final period, the Customer may himself undertake or employ a third party to undertake necessary remedial work at the risk and expense of EMEA, provided the Customer or third party does so in a professional manner. Where successful remedial work has been undertaken by the Customer or a third party, reimbursement by EMEA of reasonable costs incurred by the Customer shall be in full settlement of EMEA’s liabilities for the said defect.

36. Where the defect has not been successfully remedied, as stipulated under Clause 35,

a) the Customer shall be entitled to a reduction of the Contract Price in proportion to the reduced value of the Equipment, provided that under no circumstances shall such reduction exceed 15 per cent of the Contract Price, or

b) where the defect is so substantial as to significantly deprive the Customer of the benefit of the Contract as regards the Equipment or a substantial part of it, the Customer may terminate the Contract by notice In Writing to EMEA in respect of such part of the Equipment as cannot in consequence of the defect be used as intended by the parties. The Customer shall then be entitled to compensation for any direct damage (excluding consequential and indirect loss), up to a maximum of 15 per cent of that part of the Contract Price which is attributable to the part of the Equipment in respect of which the Contract is terminated.

37. Save as stipulated in Clauses 22-36, EMEA shall not be liable for defects. In consequence, EMEA shall not be liable for any other loss the defect may cause, including loss of production, loss of profit and other indirect loss. This limitation of the EMEA’s liability shall not apply if he has been guilty of Gross Negligence.

Liability for infringement of Intellectual Property Rights

38. Unless otherwise agreed, EMEA shall, in accordance with this clause and Clauses 39 – 42 be liable towards the Customer for the Equipment infringing patents, copyrights or any other intellectual property rights of a third party in the Customer’s country. EMEA shall in such case indemnify the Customer and hold the Customer harmless against claims of third parties, provided that such claims are confirmed as valid by a final award or a settlement approved by EMEA. EMEA shall however not be liable for the Customer’s loss of production, loss of profit, loss of use and loss of contracts.

39. EMEA shall have no liability for infringement of intellectual property rights arising out of:

• The Equipment being used elsewhere than in the Customer’s country;
• The Equipment being used otherwise than agreed or in a way EMEA could not have foreseen;
• The Equipment being used together with equipment or software not supplied by EMEA, or
• A design or construction stipulated or specified by the Customer.

40. EMEA shall only be liable if the Customer notifies EMEA In Writing without delay of any claim as referred to in Clause 38 which he receives and allows EMEA to decide how the claim shall be dealt with.

Defence against claims referred to in Clause 38 shall be for EMEA’s account. EMEA shall compensate the Customer for any amounts the latter is obliged to pay under a final award or a settlement approved by EMEA.

41. Infringement of intellectual property rights shall, at EMEA’s discretion, be remedied by:

• Providing the right for the Customer to use the Equipment,
• Adjusting the Equipment so that the infringement ceases, or
• By replacing the Equipment with another Equipment, which can be used without infringing applicable intellectual property rights.

42. If EMEA fails to remedy the infringement in accordance with Clause 41 without undue delay, Clauses 35, 36 and 37 shall apply.

Allocation of liability for damage caused by the Equipment

43. EMEA shall not be liable for any damage to property caused by the Equipment after it has been delivered and whilst it is in the possession of the Customer. Nor shall EMEA be liable for any damage to products manufactured by the Customer or to products of which the Customer’s products form a part.

If EMEA incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Customer shall indemnify, defend and hold EMEA harmless.

If a claim for damage as described in this clause is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof In Writing.

EMEA and the Customer shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Equipment. The liability between EMEA and the Customer shall however be settled in accordance with Clause 52.

The limitation of EMEA’s liability in the first paragraph of this clause shall not apply where the EMEA has been guilty of Gross Negligence.

Force Majeure

44. Either party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by force majeure, meaning any of the following circumstances: industrial disputes and any circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and import or export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this clause.

A circumstance referred to in this clause whether occurring prior to or after the formation of the Contract shall give a right to suspension only if its effect on the performance of the Contract could not be foreseen at the time of the formation of the Contract.

45. The party claiming to be affected by force majeure shall notify the other party In Writing without delay on the intervention and on the cessation of such circumstance. If a party fails to give such notice, the other party shall be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice.

If force majeure prevents the Customer from fulfilling his obligations, he shall compensate EMEA for costs which EMEA incurs in storing, securing and protecting the Equipment and avoiding unreasonable interference with his other activities.

46. Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to terminate the Contract by notice In Writing to the other party if performance of the Contract is suspended under Clause 44 for more than six months.

Anticipated non-performance

47. Each party shall be entitled to suspend the performance of his obligations under the Contract, where it is clear from the circumstances that the other party is not going to perform his obligations. A party suspending his performance of the Contract shall forthwith notify the other party thereof In Writing.

Consequential losses

48. Save as otherwise stated in these General Conditions or in case of Gross Negligence there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts and for any other consequential or indirect loss whatsoever, whether the loss was foreseeable or not.

Limitation of overall liability

49. Except as otherwise provided in this agreement, neither party shall be liable for incidental, punitive, consequential or special damages, including lost profits, loss, caused by, arising out of or resulting from the Equipment, the services, any performance or failure to perform as agreed or otherwise, whether or not caused by or resulting from the negligence of such party, even if such party has been advised of the possibility of such damages.

In no event will EMEA’s total liability (whether based on contract, tort, negligence, indemnity or otherwise, for any liability or damage arising out of or related to this agreement) exceed the Contract Price.

Whenever EMEA grants any guarantees (either specific or general), those shall be only valid and binding to EMEA if the Equipment is properly accepted (and when applicable erection and commissioning is made under supervision of one of EMEA’s experts -under and according to their instructions).

Withdraw from the contract

This specific penalty shall be independent and cumulative to any other indemnity to which EMEA would be entitled either by the contract or the statutory law. Parties expressly exclude the regime provided for in article 1154 of the Spanish Civil Code and the arbitrator shall not have the faculty to moderate the penalty.

When due to a lack of response from the customer, it is not clear whether the customer has withdrawn from the contract or simply breached his obligations; EMEA shall be free to decide whether the customer has opted to withdraw from the contract or has breached his obligations.

Disputes and applicable Law

51. All disputes arising out of or in connection with the business relationship between EMEA and the customer shall be submitted to the resolution of the Courts and Tribunals of the city of Barcelona, and the customer expressly resigns from any other jurisdiction.

52. The Contract shall be governed by the substantive law of Spain.