“Subsidiaries” of u-blox AG are in particular: u-blox Italia S.p.A., u-blox UK Ltd., u-blox Cambridge Ltd., u-blox Leuven, u-blox Luton Ltd., u-blox Lahore (pvt) Ltd., u-blox Cork Ltd., u-blox Espoo Oy, u-blox Athens S.A., u-blox Malmö AB, u-blox Berlin GmbH
- General: Absent any express written agreement between the parties, these general terms and conditions of purchase (“Terms”) shall apply to any purchase of products or to any provision of services to u‑blox AG, its Subsidiaries and representative offices (together “u‑blox”). Any terms and conditions issued by the entity supplying products or services (“Supplier”) to u‑blox deviating from these Terms shall only be valid if expressly acknowledged and agreed to by u‑blox in writing. As a principle, the Terms apply as soon as u‑blox confirms an offer made by Supplier or issues a purchase order, and such issuance of an order by u‑blox or any confirmation issued by Supplier and following this order shall not be interpreted as an agreement to any terms and conditions referenced or issued by Supplier e.g. in its quotation or in any order confirmation.
- Payment Terms: Absent an agreement to the contrary, payment is due sixty (60) days from the date of receipt of Supplier’s product (“Supplier Product”) or from the date of performance or completion of Supplier’s service or work (“Supplier Service”, together “Supplier Products and/or Services”).
- Delivery and Price: The delivery of the Supplier Products is performed DAP in accordance with Incoterms 2010. Thus, Supplier Products are shipped to u‑blox at Supplier’s risk to the address indicated in the order. Equally, prices are to be understood DAP, including shipping costs. Late delivery may create costs to u‑blox, and u‑blox is entitled to levy a late delivery fee in the amount of 1% of the price of the delayed delivery for every day of delay, the count of which starts after the grace period of two business days from the delivery date (“Grace Period”) up to a maximum of 10% of the price of the delayed delivery. This late delivery fee does not preclude u‑blox from requesting compensation for damages arising out of such late delivery and exceeding such late delivery fee. The same regime applies to Supplier Services which are not performed at or completed until the agreed completion date, unless expressly agreed upon by u‑blox.
- Order Changes and Cancellations: u‑blox may cancel, change or postpone any order until two (2) weeks before the agreed delivery or performance date without any cost.
- Inspection: u‑blox will inspect the delivered Supplier Product or the completed Supplier Service as soon as feasible in the normal course of business and will inform the Supplier of any apparent defects discovered. If u‑blox has not issued an express acceptance or rejection within 14 days from receipt of the Supplier Products or completion of Supplier Services, u‑blox is deemed to have accepted them (“Acceptance”). Acceptance by u‑blox does not imply a waiver of u‑blox’s rights under the warranty terms hereunder or under any applicable legislation attributing rights to u‑blox to claim compliance with the issued order.
- Warranties: Supplier warrants that the Supplier Products or Services provided to u‑blox are not defective in title and comply with the specified characteristics in the order placed by u‑blox. Supplier warrants that they are free from defects, of merchantable quality and fit for the intended purpose as described in the order and as discussed and agreed by the involved parties. In addition to what is stated herein, the legal provisions regarding material defects and defects of title apply. u‑blox will notify Supplier of any defects in the Products or Services upon detection of such defects:
- With regard to Supplier Products, u‑blox is entitled to choose whether it wants fulfillment of a non‑defective delivery by replacement or repair, and Supplier may only refuse u‑blox’s choice if the costs of the measure are clearly disproportional compared to another commercially reasonable option such as reimbursement of the paid price.
- With respect to Supplier Services, u‑blox may refuse Acceptance (s. above) or reject the Supplier Services even after the lapse of the Acceptance period where the Supplier Services are so defective or deviate from the contractual terms to such an extent that u‑blox has no use for it or cannot equitably be expected to accept it. In the case of minor defects or only slight deviations from the contractual terms, u‑blox may reduce the price in proportion to the decrease in its value or require the Supplier to rectify the work at his own expense, provided such rectification is possible without excessive cost to the Supplier.
With regard to both Supplier Products and Services, u‑blox may in addition to the above‑mentioned measures seek compensation for damages or costs arising from the non‑compliance. In case Supplier does not take immediate action to remedy the notified defects, in urgent cases, u‑blox is entitled, at Supplier’s cost, to remedy the defect by itself or by choosing a reasonable replacement Product or Service provided by a third party.
Absent any express written agreement to the contrary, Supplier’s warranty obligations are limited to twenty‑four (24) months from delivery of the Products to u‑blox or, in case of Services, from the Acceptance of the provided Services by u‑blox. Upon fulfillment of the warranty obligations, e.g. replacement of a defective Product, the warranty period of such Product will start anew from the beginning. Any costs to u‑blox and its customers arising from defective Products or Services provided by Supplier will have to be covered by Supplier. In connection with defective Products, these costs, if any, include possible costs for recall, removal and replacement of defective Products, reinstallation of non‑defective Products, communication and transport costs, subsistence expenses, overtime compensation, costs of material and machines and possible legal costs.
- Supply Chain Responsibility: Supplier warrants that it complies with all principles of u‑blox’s sustainable supplier program, which is based on the EICC Code of Conduct and accessible on u‑blox’s website.
- Product Liability: In case u‑blox faces third party claims regarding product liability, based on Supplier’s Products and/or Services, Supplier will defend, indemnify and hold harmless u‑blox against such claim.
- Force Majeure: Acts of God, operational disturbances without fault, unrest, governmental measures and other unavoidable events discharge each party from its obligation to make/take punctual delivery for the duration of such event. During such events and for a two week period thereafter u‑blox is entitled – notwithstanding any other rights – to withdraw from the agreement in whole or in part, provided that such events are not of inconsiderable duration and that the Products or Services to be provided have to be procured elsewhere as a result thereof.
- Use Rights and Restrictions of Use: u‑blox is granted an unlimited, non‑exclusive license to use Supplier’s or its licensors’ intellectual property rights in the Supplier Products or Services provided by Supplier only to the degree necessary to commercially use the Supplier Products and Services as intended and expressed by u‑blox in its order and/or in the mutually exchanged correspondence. With respect to hardware or software components (“Supplier Components”) supplied to u‑blox, the license rights granted to u‑blox by Supplier or its licensors include the right for u‑blox to be able to integrate the Supplier Components into u‑blox’s own products (“u‑blox Products”) and to develop, make, have made, market, sell or otherwise commercially use the u‑blox Products. With regard to Supplier Services provided to u‑blox, the basic principle is that the work product resulting from the Services (“Work Product”) entirely belongs to u‑blox, including the intellectual property rights vested in such Work Product and required by u‑blox to commercially use such ordered Work Product within the limits of its business model. In case regulatory provisions prevent the transfer of intellectual property rights to u‑blox, Supplier shall provide u‑blox with all necessary use rights in order for u‑blox to fulfill the purpose intended by the ordering of the relevant Services.
- Open Source Software: Supplier warrants that the use of its Supplier software Products as described above is not subject to open source software terms that might lead to a contractual or regulatory obligation of u‑blox to place its source code in the public domain or to offer its free distribution.
- Intellectual Property Indemnity: Supplier will cooperate in investigating any demand, or any civil, criminal or administrative claim, action, or proceeding (including non‑judicial proceedings) asserted, commenced or threatened against u‑blox, its successors, its affiliates, distributors, manufacturers or customers (“Indemnitees”) by a third party unaffiliated with u‑blox asserting or alleging that the use of the Supplier Products or Services by an Indemnitee infringes any third party patent, copyright, design right, utility model or trademark or that their use constitutes a misappropriation of any third party rights in know‑how or trade secrets (“Claim”).
Supplier agrees: (i) to defend and indemnify any Indemnitees against and hold them harmless from any damages and costs (such as reasonable attorney’s and other professional fees and expenses, settlements, awards, judgments and connected costs such as removal and replacement costs for infringing Products) arising out of a Claim issued by any third party; (ii) that if the sale or use of any Supplier Product or Service is enjoined or likely to be enjoined, Supplier shall at its sole expense, procure for all relevant Indemnitees the right to continue using and/or selling such Supplier Product or Service, replace it with an equivalent non‑infringing product or service or modify it so it becomes non‑infringing.
- Confidentiality: Absent any specific agreement regarding confidentiality between the parties, both parties agree to treat information as confidential provided the party disclosing such information clearly designates such information as being confidential or a reasonable person under the same circumstances would deem the same. The parties are prohibited from disclosing confidential information to any third parties, except to their respective affiliated companies (subsidiaries, sister and parent companies).
- Termination: Either party may terminate this agreement upon the other party’s insolvency, bankruptcy, liquidation or filing of any application therefore, seizure of the other party’s assets or assignment to the benefit of its creditors. Either party may terminate this agreement with immediate effect in case of a serious material breach of the other party’s obligations.
- Export Control: Supplier represents and warrants that the Supplier Products or Services will not violate any provisions regarding export controls or other restrictions under any applicable laws or regulations.
- Assignment: Neither party shall assign this contract in part or entirely to a third party without the other party’s express approval. Any change in control of a party resulting from a merger, consolidation, stock transfer or asset sale shall not be deemed an assignment for purposes of this agreement, except for cases where such an operation leads to the control of a party by a direct competitor of the other party (requires approval).
- Severability: If any term or provision of these Terms is or becomes illegal, invalid or unenforceable in any applicable jurisdiction, this shall not affect the legality, validity or enforceability of any other term or provision of this agreement, and such term or provision shall be replaced by wording that comes closest to its intended economic purpose to the maximum extent authorized by law.
- Law and Jurisdiction: All contracts between the parties are subject to Swiss material law excluding its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods of 1980 shall not apply. Place of venue is the commercial court of Zurich, Switzerland, except where u‑blox raises a claim at the Supplier’s place of residence or at the place of delivery or performance.