OBU one is a brand of ETA Automatizari Industriale that has the headquarter at 1st Gheorghe Dima Street, 300079 Timisoara, Romania, hereinafter referred to as “ETA-AI”, and registered in Timisoara under the number J35/3680/1994, VAT number RO6825562, has designed and developed a range of electronics and software products in the fields GPS positioning, navigation, radio communication telecommunication and fleet management.
Article 1 Object
Sales of ETA-AI’ products (hereinafter referred to as the “Products”) are governed by these terms and conditions of sales remitted to the client (hereinafter referred to as “Client”) together with the commercial quotation. The Products comprise software (hereinafter referred to as the “Software”) a license of which is granted to Client by ETA-AI under article 4 hereof. All orders placed by Client on the basis of said commercial quotation entails the unconditional acceptance of these terms and conditions (hereinafter referred to as the “Agreement” which supersede any purchase terms and conditions, unless otherwise expressly accepted by ETA-AI. Should such purchase terms and conditions be in contradiction with ETA-AI’ terms of sales, Client shall notify so in writing to ETA-AI at the same time the order is placed and ETA-AI reserves the possibility to accept or reject such order in accordance with the provisions of article 2.3 hereof.
Article 2 Purchase Orders
2.1 Client shall issue purchase orders for Products on its letter-head paper duly signed by an authorized representative and containing Client’s commercial seal, hereinafter referred to as “Purchase Orders”.
2.2 Purchase Orders will imperatively be sent by Client to ETA-AI by facsimile or by postal mail and shall specify for any Product ordered: the precise quantity, a description, the reference, the selling price per unit, the total price before tax, the target date of delivery as well as the conditions and place of delivery and the terms of payment wished.
2.3 Purchase Orders shall not bind ETA-AI unless accepted in writing. Such acceptance shall not be tacit and shall take the form of an order confirmation or proposal issued by ETA-AI within five (5) working days following their receipt (hereinafter referred to as the “Order Confirmation”). Accepted Purchase Orders shall not be cancelled or modified, in whole or in part, without ETA-AI’ prior written acceptance.
Article 3 Terms of Delivery, Transportation
Unless otherwise stipulated and without any prejudice to article 6 hereof, the terms of delivery of the Products shall be, at ETA-AI’ option, EXW Timisoara (Incoterms 2000). Client shall bear all risks and be responsible for all transportation and insurance costs together with any taxes and custom duties involved in connection with the delivery of the Products.
Article 4 License
ETA-AI grants to Client a non-exclusive, non-transferable license to use the Software, but only to the extent the Software are embedded in the Products, and exclusively for Client’s internal business purpose. Client is not allowed to (i) decompile, disassemble or reverse engineer the Software, in whole or in part, or use the Software for any competitive analysis purposes whatsoever; (ii) grant or allow access to the Software to any third parties; and (iii) copy the Software, in whole or in part.
Article 5 Changes to the Products
ETA-AI reserves the right to change, at any time, all or part of the Products specifications (construction, design, brand designation, labeling, packaging, reference…), and will make its best efforts to inform Client of such changes within a reasonable period. ETA-AI shall however not be required or obliged to supply Client with any such change in respect of the Products delivered prior to such change.
Article 6 Retention of Title
ETA-AI reserves a security interest in all Products sold to the extent of the invoiced amount and will retain title on all Products sold and delivered until complete payment of the price. If Client defaults under any obligation hereunder, then Client agrees to make the Products available so that ETA-AI can repossess them without a breach of the peace. For the purpose of implementing this provision, the Products which are still under the control of the Client will be considered as those still unpaid. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. At ETA-AI’ request, Client will execute any instruments ETA-AI shall need to perfect its security interest.
Article 7 Prices and Terms of Payment
Prices in the commercial quotations sent to Client are given before tax and, at ETA-AI’ option, in RON, EUR or in US Dollars.
7.2 Terms and conditions of payment
Subject to financial warranties client may provide to ETA-AI, the Products are payable either by wire/swift transfer in advance or at the latest thirty (30) days following the date of the invoice unless otherwise stipulated by ETA-AI on the Order Confirmation. In the event of nonpayment, of a total or partial late payment, or of financial difficulties of Client, at the time of an initial Purchase Order or during its business relationship with ETA-AI, ETA-AI reserves the right to request from Client an advance payment or appropriate financial warranties.
7.3.1 In the event of a partial or total nonpayment of any invoice, ETA-AI reserves the right to suspend deliveries notwithstanding the terms and conditions stipulated on the corresponding Order Confirmation until full payment of the price of the Products.
7.3.2 Interests for late payment shall accrue (i) from the day following the payment date as determined by the invoice (ii) until the date of full payment of the price of the products.
The interest rate for late payment penalties shall be equal to the interest rate applied by the European Central Bank to its most recent refinancing operation increased by five (5) percent.
Article 8 Limited Warranty
8.1 ETA-AI warrants (a) that the hardware part of the Products, excluding the Software, sold will be free from defects during the warranty period of twelve (12) months following their date of shipment, and (b) that for a period of ninety (90) days following the date of shipment of the Products, the Software will substantially conform to their technical specifications Provided that any warranty shall be excluded if the default alleged is the result of a fair wear and tear of the Products, a misuse of the Products, modifications made by Client, a lack of supervision or maintenance and more generally any event out of ETA-AI’ control. In order to activate the above warranty, Client shall:
– immediately notify ETA-AI in writing that the Products are defective and shall furnish a detailed explanation of any alleged deficiency;
– return to ETA-AI the defective Products at its own risks and expenses and in an appropriate packaging.
If ETA-AI finds the Products to be defective, ETA-AI shall at its sole discretion and in a reasonable period, decide to repair or replace the defective Product or credit Client’s account by an amount equal to the price paid for said Products.
8.2 These warranties are exclusive of any other warranty. ETA-AI will not grant any other express or implied warranty for the Products delivered and in particular, no implied warranty of merchantability or fitness for a particular purpose or any implied warranty of non infringement. ETA-AI does not warrant that the Products will meet Client’s requirements or that operation of the Software will be uninterrupted or error free.
8.3 Software modifications: Client may request specific software developments or configuration parameters modification. In such case, and prior to issuing the order, Client will provide ETA-AI with a detailed specification of the modifications. Scope of the modifications, prices and delivery delays of the software modifications will have to be defined and agreed between Client and ETA-AI. Client may also modify on his own the software, either internally or through any subcontractor.
In any case, the validation of the modified software is at the sole responsibility of the Client. After validation of the software by Client; ETA-AI will either deliver the products with the validated software, of deliver separately standard products, specific software and software update procedure. In any case the validation of the modified software will be under sole responsibility of the Client.
Article 9 LIMITED LIABILITY
9.1 Exclusion of Damages. Neither party’s liability: (a) for death or personal injury caused by the its negligence or the negligence of it employees or agents; (b) for breach of any condition as to title or quiet enjoyment; (c) for fraudulent misrepresentation; (d) breach of Section 11 (non disclosure); (e) to pay sums properly due and owing to the other in the course of normal performance of this Agreement; or (g) Violations of ETA-AI’ Intellectual Property Rights in the products, is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
9.2 Subject to Section 9.1, the parties do not accept any liability under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (a) special, incidental, punitive, indirect or consequential damages; (b) loss of or loss of use of any product, software, data or computer; (d) loss of or damage to business; (e) loss of profits; (f) loss of customers; (g) loss of goodwill; and for the purposes of this Section the term “loss” includes a partial loss or reduction in value as well as a complete or total loss.
9.3 Financial Cap. Subject to Sections 9.1 and 9.2, ETA-AI’ total liability arising from or in connection with this Agreement and in relation to anything which it may have done or not done in connection with this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to an amount equal to 100% of the total amount paid or payable by Client under this Agreement.
9.4 Basis of Bargain. The parties expressly acknowledge and agree that ETA-AI has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between ETA-AI and Client and form a basis of the bargain between the parties.
Article 10 Intellectual Property
ETA-AI holds and remains the owner of all intellectual property rights relating to the Products, including without limitation, patents or patent applications, drawings and patterns rights, Products’ trademarks, concepts and know-how elaborated or discovered during the creation of the Products. Upon the sale of the latter, no intellectual property right shall be transferred or assigned to Client. Client commits not to interfere with or prejudice the intellectual property rights of ETA-AI. Client will indemnify and hold ETA-AI harmless against all liability, damages, losses and expenses, (including attorneys’ fees and other costs of legal defense), that ETA-AI, may sustain or incur as a result of a breach by Client of this article.
Client shall not reverse assemble, disassemble, or restructure all or part of the Products.
Article 11 Non Disclosure
All information, technical data, specifications., whatever their nature and support, including but not limited to technical, economical, financial or commercial information, disclosed by ETA-AI to Client or by Client to ETA-AI, or that Client may acquire from ETA-AI or that ETA-AI may acquire from Client, within their business relationship are confidential and are subject to the strictest confidentiality obligation. ETA-AI and Client commit not to disclose any confidential information relating to their Products to third parties other than their own employees who have a need to know such information within the performance of their work. ETA-AI & Client guarantee that their employees shall respect these terms.
Article 12 Force Majeure
In case a Force Majeure event as defined by Romanian law delays the performance of the obligations hereof, the affected party shall immediately notify the other Party of such an event.
Article 13 Governing Law
The sales of Products subject to these terms and conditions shall expressly be governed by and construed in accordance with the laws of Romania. Any dispute arising from the interpretation, the validity or the performance of these terms and of said sales shall first be settled by way of direct negotiations and, if no such amicable agreement has been reached, shall be submitted to the exclusive jurisdiction of the Commercial Court of Timisoara. The provisions hereof will not prevent the parties from taking any protective or temporary measures required to preserve their reciprocal interests