1. Offer, confirmation or contract

These terms and conditions for the commercial sale of Arquiled, Projectos de Iluminação, S.A. (hereinafter “Terms and Conditions”) apply to and are an integral part of all bids and offers submitted by Arquiled, Projectos de Iluminação, S.A. (hereinafter “Arquiled”), all acceptances, acknowledgments and confirmations made by Arquiled of orders submitted by the Purchaser and the contracts (hereinafter “Contract(s)”) for the purchase by the Purchaser of goods and services (hereinafter “Products”), unless Arquiled explicitly agrees otherwise or other conditions in writing.

The terms and conditions on any document or documents prepared by the Purchaser, before or after any document prepared by Arquiled stipulating or relating to these Terms and Conditions, are hereby explicitly revoked and ignored by Arquiled, thus the whole of the said terms shall not apply to sales by Arquiled to the Purchaser or bind the former in any way.

Offers by Arquiled have an acceptance period set by the company in the relevant offer or, if no term is specified, of 30 (thirty) days from the date thereof, although Arquiled may withdraw or cancel such offers at any time before it receives the relevant acceptance from the Purchaser.

 

2. Prices

The prices shown in offers, confirmations or contracts are denominated in euros, based on delivery to the door of the factory/Ex Works (latest version of INCOTERMS), at the manufacturing unit of Arquiled or at any other unit at the latter’s choice, except as otherwise agreed in writing between the Purchaser and Arquiled, excluding any taxes, fees or similar rights in force or subsequently enacted applying to the Products or any other expenses. Arquiled shall add taxes, fees and identical rights to the selling price where permitted or if required by law to pay them or charge them and the Purchaser will bear them along with the price.

 

3. Payment

a) Unless otherwise agreed in writing between Arquiled and the Purchaser, the former may invoice the latter for the price of the Products upon delivery thereof in accordance with the applicable INCOTERM. Net payment is due within 30 (thirty) days of the invoice date, unless Arquiled and the Purchaser agree otherwise. All payments will be made at the address provided by Arquiled. If deliveries are made in instalments, each instalment may be separately invoiced, and the appropriate payment made when due. Unless otherwise agreed in writing by Arquiled, there will be no discounts in respect of advance payments. In addition to any other rights and remedies that Arquiled may have under applicable law, all delayed payments shall accrue interest at the rate resulting from LIBOR (London Interbank Offered Rate) plus 6 percent, from their due date until full settlement.

b) All deliveries of Products agreed by Arquiled will always be subject to credit approval by Arquiled. If, in the opinion of Arquiled, the financial position of the Purchaser at any time does not justify production or delivery of Products in the above payment terms, Arquiled may demand early total or partial payment or any other terms as a condition for delivery and Arquiled may suspend, postpone or cancel credits, deliveries or other commitments that bind them.

c) In the event of any default by the Purchaser relating to the payment of fees or charges due, or any other default by the Purchaser, Arquiled shall have the right to refuse production and/or delivery of the Products until full settlement of delayed payments and may suspend, postpone or cancel credits, deliveries or any other commitments that bind them. This right shall accrue and shall not replace any other rights and remedies available under the Contract or the law.

 

4. Delivery and quantities

a) Products must be delivered to the door of the factory/Ex Works (latest version of INCOTERMS) as instructed by Arquiled, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Arquiled are approximate, thus the latter shall not be liable or breach any obligation undertaken to the Purchaser for deliveries made reasonably before or after the delivery date reported. Arquiled accepts to make commercially reasonable efforts to meet the delivery dates communicated or acknowledged by them as long as the Purchaser provides all information on orders and deliveries in sufficient advance of the respective date of delivery.

b) The Purchaser shall notify Arquiled of delivery default and allow a period of 30 (thirty) days during which the latter must make the relevant delivery. If Arquiled does not deliver within said 30 (thirty) days, the only remedy for the Purchaser is to cancel the affected undelivered parts in the respective Contract.

c) Ownership of the Products shall be transferred to the Purchaser upon full payment of the purchase price, including interest and/or expenses related thereto and (or as permitted by applicable law) full payment of any other products ordered by the Purchaser and/or payment of any claim related to or arising from the Contract. Before ownership of the Products is transferred to the Purchaser, the latter shall not assimilate, transfer or encumber any of the Products, or grant any right or ownership on the Products to third parties, except where granting such right or title arises from normal business. The Purchaser shall ensure that the Products retain the identification as Products purchased from Arquiled. The Purchaser shall always grant Arquiled (or their representative) free access to the premises where the Purchaser stored the Products. If the Purchaser does not meet their payment obligations to Arquiled or gives cause to believe that they shall not meet all and any payment obligations, the Purchaser is obliged, at the request of Arquiled, to return at the Purchaser’s expense the Products whose ownership has not yet been transferred; in parallel, the Purchaser agrees to cooperate fully with Arquiled for the latter or their representative to collect their Products. The risk of loss of Products shall pass to the Purchaser upon delivery by Arquiled in accordance with the applicable INCOTERMS.

d) If the Purchaser fails to receive the ordered Products, Arquiled may deliver them for consignment at the former’s expense.

e) If the Purchaser prevents, by act or omission, delivery of the ordered Products, notably due to breach or defective performance of duties as the case may be of providing access to sites, equipment, materials, information, collaboration and documentation, they shall pay the full price as if the Products had been delivered, Arquiled committing to report promptly to the Purchaser all circumstances that prevent or hinder the delivery of the ordered Products.

f) If, for any reason, Arquiled’s production is stopped, the latter shall have the right to distribute their production and Products available at their sole initiative, to their different customers and, consequently, may sell and deliver to the Purchaser fewer Products than specified in the Contract, as appropriate, without being responsible or liable to the Purchaser for any damage resulting therefrom.

 

5. Force majeure

Arquiled shall not be liable for any failure or delay in performance if:

(i) such failure or delay results from interruptions in the manufacturing process of the Products; (ii) said failure or delay is caused by acts of force majeure, as defined below or by case-law.

In case of failure in the terms set forth above, the performance of the relevant part(s) of the Contract shall be suspended for the period that this failure persists and Arquiled shall not be liable to the Purchaser for any damage resulting therefrom.

The phrase “Force Majeure” shall mean and include any circumstances or events beyond the reasonable control of Arquiled, whether or not foreseeable at the time of signature of the Contract, as a result of which one cannot reasonably require Arquiled to meet their obligations, including cases of force majeure and/or breach by one of Arquiled’s suppliers. Should cases of Force Majeure extend for a period of 3 (three) consecutive months (or should Arquiled provide reasonable assurance that the delay shall last for 3 (three) consecutive months), Arquiled shall be entitled to cancel all or part of the Contract with no liability to the Purchaser.

 

6. Rights in software, documentation and intellectual property

In accordance with the provisions hereof, the sale by Arquiled of any items entails a non-exclusive limited license, non-transferable to the Purchaser under the intellectual property rights of Arquiled and/or their subsidiaries (hereinafter “intellectual property rights”) used in the items to use and resell the items in the selling terms of Arquiled to the Purchaser.

If the software and/or documentation is embedded in or distributed with any items sold by Arquiled to the Purchaser, the sale of said articles shall not entail transfer of ownership rights or ownership of said software and/or documentation to the Purchaser, but, subject to the provisions hereof, entail only a non-exclusive license, non-transferable to the Purchaser under Arquiled’s intellectual property rights to the software, use of said software and/or documentation jointly, embedded in or delivered with the items in accordance with the provision made by the Arquiled to the Purchaser.

Notwithstanding any contrary provision herein, one shall not infer from the Terms and Conditions that they grant rights, license or immunity, directly or by implication, exclusion or otherwise, to the Purchaser or to third parties under the intellectual property rights of Arquiled or of third parties, except for those explicitly granted under these terms and conditions.

The Purchaser shall not: (a) modify, adapt, alter, translate or create derivative works from any software residing in or provided by Arquiled together with any items; (b) assign, sublicense, rent, lease, lend, transmit, disclose or otherwise make available such software; (c) merge or incorporate such software with other software; or (d) reverse-engineer, decompile, disassemble or otherwise attempt to obtain the source code of such software without the written permission of Arquiled, unless this is permitted by applicable law. The Purchaser shall play without alterations or changes the subtitles of property rights of Arquiled and/or their affiliates or suppliers with respect to any software or documentation provided by Arquiled. If and provided that author’s rights on the software belong to third parties, the terms of the third-party license shall apply instead of these Terms and Conditions to the software of said third parties.

 

7. Limited Warranty and disclaimer

a) Arquiled warrants that, under normal use according to the applicable user’s guide, the Products (excluding software not embedded in or distributed with articles by Arquiled or software covered by third-party author’s rights), at the time of delivery to the Purchaser and for a period of 12 (twelve) months from the date of delivery (or such other period as may be agreed in writing by the parties or in the terms notified in writing upon sale by Arquiled), shall be free from material or labor defects and fulfil, substantially, Arquiled’s specifications for the respective Product, or any other specifications that Arquiled agrees in writing, as applicable. This warranty does not cover labor costs, dis(assembly) and/or (un)installation. The sole and exclusive obligation of Arquiled, as well as the sole and exclusive right of the Purchaser in respect of claims covered by this warranty shall be limited, at the discretion of Arquiled, to (1) repair or (2) replacement of a defective or nonconforming Product, or (3) credit appropriate to the purchase price in question. Arquiled shall have a reasonable time to repair, replace or allocate credit. Arquiled has the prerogative to replace the defective or non-conforming Product(s) with a slightly different Product in terms of design and/or specifications that does not affect the functionality(ies) of the Product(s) agreed. The property of non-conforming or defective Products shall return to Arquiled as soon as they have been replaced or such credit allocated. This warranty shall not apply to damage or malfunction in the Products delivered by Arquiled if caused by: (1) failure to perform, structural defect or malfunction when Arquiled has fully complied with notes written by the customer, drawings or designs (hereinafter Specifications) for the products to be supplied by Arquiled whose Specifications are subsequently considered inappropriate, incomplete or incorrect: or (2) electrical discharges or other variations in power supply or the supply of electricity to a level that exceeds the maximum recommended for power supply to allow the products to operate safely and correctly; or (3) corrosion by rainwater and other chemicals elements foreign to the manufacturing process (e.g. salt) or other natural risk. The warranty applies to replaced Product(s) or part(s) thereof to the expiry of the warranty period. LED lamps are not deemed defective only as a result of failure of individual LED components if the number of inoperable components is less than 10% of the total number of components of the LED lamp.

b) The Purchaser may send Products returned under warranty to the unit instructed by Arquiled. Whenever a claim under the warranty is justified, Arquiled shall bear the costs of transportation. The Purchaser shall pay for the returned Products that are not deemed deficient or non-compliant, together with the associated costs of transport, testing and handling.

c) Notwithstanding the foregoing, Arquiled shall have no obligations under this warranty if the alleged defect or non-compliance is a result of environmental testing, misuse, use other than that specified in the applicable user manual, negligence, improper installation or accident, or as a result of incorrect repair, alteration, modification, storage, transport or handling.

d) Subject to mandatory applicable law, the explicit warranty granted above shall only cover directly the Purchaser, excluding their customers, agents or representatives, and shall replace all other warranties, express or implied, including, without limitation, the implied warranties of fitness for a particular purpose, exploitability or non-infringement of intellectual property rights. Arquiled hereby specifically disclaims all other warranties.

e) In terms of the foregoing exclusions and limitations in Section 9 of these Terms and Conditions, the former describes the full liability of Arquiled and its subsidiaries in respect of disabled or non-compliant products provided hereunder.

 

8. Compensation for intellectual property rights

a) Arquiled, at their sole responsibility, shall: (i) defend any legal action brought by third parties against the Purchaser provided that said action claims that the Products supplied by Arquiled under a Contract directly infringe the claimant’s patent, author’s rights, trademarks or trade secrets; and (ii) exempt the Purchaser of payment for losses and damages awarded by final judgment in said judicial action, provided that it is based directly and exclusively on that infringement.

b) Arquiled shall have no obligation and shall not be liable to the Purchaser under Section (a)

(1) if (i) they are not notified promptly in writing of any such claim; (ii) they do not receive the exclusive right to control and direct the investigation, preparation and defense and settlement of the claims in question, including the choice of the appropriate lawyer; and (iii) they do not receive full and reasonable assistance and cooperation from the Purchaser in such investigation, preparation, resolution and defense;

(2) if the claim is made after a period of 3 (three) years from the product delivery date.

(3) if the claim arises from: (i) modification of the Product if the claim regarding the infringement could have been avoided by using the unmodified Product; or (ii) design, specifications or instructions provided by the Purchaser;

(4) if the claim is based directly or indirectly on the quantity or value of products manufactured by way of the Products or the frequency of use or volume of use of the Products, whether said claim alleges that the Product or use thereof infringes or contributes to the infringement of intellectual property rights of the claimant;

(5) unauthorized use or distribution of the Product or use thereof beyond its specifications;

(6) if said claim relates to the manufacture, use, sale, offer for sale, importation or other disposal or promotion of the Product by the Purchaser after notified by Arquiled to cease such activity, if said notice is served only if there is the possibility, or Arquiled so believes, that the Product be subject to a claim regarding any infringement;

(7) any costs or expenses borne by the Purchaser without written permission of Arquiled;

(8) if the claim is based on prototypes, open source software or software provided by the Purchaser or any of their representatives to Arquiled and/or their subsidiaries;

(9) where said claim originates from infringement or alleged infringement of third-party intellectual property rights covering a standard set by a norm setter entity and/or agreed upon by at least two companies.

(10) infringement of any intellectual property rights on the manufacture, testing or application of a series, circuit, combination, method or process in which the Product may be used; or

(11) infringement of third-party intellectual property rights for which Arquiled or their subsidiaries have notified the Purchaser or released (in a data sheet or other specifications on the Product or elsewhere) a statement on the need to obtain an independent license.

With regard to claims for infringements under this Section 8 (b), the Purchaser shall compensate and indemnify Arquiled and their subsidiaries in respect of any damages or costs arising from or related to said claims and shall reimburse the costs borne by Arquiled and their affiliates in defending any claim, suit, action or proceedings relating to any claim in this context, should Arquiled give written and prompt notice to the Purchaser of any action or proceeding brought accordingly.

c) If a product is or, in the opinion of Arquiled, is likely to become the subject of a claim for infringement under Section 8 (a) above or if Arquiled receives a third-party claim for the infringement of third-party intellectual property rights under any Product of Arquiled, the latter shall have the right, without any obligation or liability and at their sole option, to: (i) ensure that the Purchaser retains the right to continue to use or sell the Product; (ii) provide a replacement Product that does not infringe any rights, (iii) modify the Product so that the modified Product does not infringe any rights; (iv) repurchase the Product from the Purchaser for the initial price paid by the latter, deducting the reasonable value of devaluation; (v) suspend or cease providing the Purchaser with the Products or parts covered by said notice; or (vi) terminate any Contract related to said Product.

d) Subject to the exclusions and limitations under Section 9 of the Terms and Conditions, the foregoing includes all liabilities and obligations of Arquiled to the Purchaser and the latter’s only remedy with respect to any actual or alleged breach of intellectual property rights or other proprietary rights of any kind.

 

9. Limitation of Liability

a) Arquiled shall not be liable for any lost profits, lost savings, loss of reputation, loss of goodwill, indirect, incidental, punitive, special damages or for damages resulting from or as a result of the contract or the sale of products or services by Arquiled, or use thereof irrespective of whether the damages are based on tort, warranty, contract or any other doctrine – even if Arquiled has been notified or has knowledge of the possibility of the existence of such damages.

The aggregate and cumulative liability of Arquiled to the purchaser under any contract shall not exceed 10% (ten percent) of the contract.

b) The Purchaser must submit their compensation claims within 90 (ninety) days from the date on which the event giving rise to such claim took place, and any judicial action relating to those claims must be brought within 1 (one) year from the date of the claim. Claims that are not submitted or recorded in accordance with the above arrangement shall have no effect.

c) The limitations and exclusions set forth in Section 9 shall apply only to the extent permitted by applicable law.

 

10. Confidentiality

The Purchaser acknowledges that all technical, commercial and financial data made available by Arquiled or their affiliates are confidential information of Arquiled and/or their affiliates. The Purchaser shall not disclose such confidential information to third parties and shall not use it for purposes other than those agreed by the parties and in accordance with the purchase transaction covered hereby.

 

11. Export/import controls

The Purchaser understands that certain transactions by Arquiled are covered by export control laws and regulations, including but not limited to export control laws and regulations from the United Nations, European Union and the United States (hereinafter “Export Regulations”) that prohibit certain products from being exported or diverted to some countries. Any and all obligations of Arquiled to export, re-export or transfer products, as well as technical assistance, training, investment, financial assistance, financing and brokerage shall be subject to the Export Regulations and in due course shall govern the license and delivery of Products and technology abroad by persons subject to the jurisdiction of the competent authorities with responsibility in connection with such Export Regulations. If the delivery of products, services and/or documentation is subject of the granting of an export or import license by certain public bodies or otherwise restricted or prohibited as a result of export/import control regulations, Arquiled may suspend their obligations and the rights of the Purchaser/end user until the license is granted or as long as such restrictions or prohibitions last. Moreover, Arquiled may also cancel the order in question in any event, taking no liability to the Purchaser or end user.

The Purchaser warrants that they comply with all restrictions on the export, re-export and transfer under those Export Regulations or in the export licenses (if any) for all Products provided by Arquiled. The Purchaser accepts the responsibility to enforce all export control restrictions on third parties if the Products are transferred or re-exported to third parties. The Purchaser shall make all reasonable efforts as required to ensure that no customer/purchaser or end user infringes these Export Regulations. The Purchaser shall compensate and indemnify Arquiled for all direct, indirect and onerous damages, losses, costs (including lawyers’ fees and costs) and other liabilities under claims arising from infringement or breach of the provisions hereof by the Purchaser of their customers.

The Purchaser acknowledges that the validity of the obligations under this Contract shall survive the dissolution of any contract or agreement under which the Products, software or technology were provided to the Purchaser. Furthermore, if the terms of this Contract counter any document entered into by the Purchaser and Arquiled, the former accepts that the terms of this Contract shall prevail and bind the Purchaser.

 

12. Assignment and compensation

The Purchaser shall not assign rights or obligations under the Contract without prior written permission of Arquiled. The Purchaser shall have no right to withhold or reduce payments or compensate for existing and future claims against any payments due in respect of Products sold under the Contract or any other contract that the Purchaser may have entered into with Arquiled or any of their subsidiaries, and accepts to pay the amounts specified herein, regardless of compensation claimed that may be submitted by the Purchaser on their behalf.

 

13. Anti-bribery

The Purchaser agrees to comply presently and in the future with national anti-bribery laws, as well as any other law transposing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (including the “US Foreign Corrupt Practices Act”). In general, the law makes it illegal to bribe or make a corrupt payment to an employee in order to obtain or retain contracts, direct business to any person or secure any inadequate advantage. Breach by the Purchaser of any provision of this section is grounds for Arquiled (or their affiliate(s)) to immediately terminate any Contract, Arquiled taking no responsibility to the Purchaser. In the event of termination, (i) Arquiled shall have no obligation to provide any product to the Purchaser; (ii) the Purchaser shall be liable to and indemnify Arquiled for any damages, claims, fines or other losses (including lawyers’ fees) that may be attributed to Arquiled or borne by them as a result of breach of this section by the Purchaser; and (iii) Arquiled shall be entitled to any other means of redress as provided for by law. The terms and conditions of this section shall remain in force after the expiry or termination of this Contract.

Arquiled establishes business relationships only with companies that abide by the law and adopt ethical standards and principles. If Arquiled receives information to the contrary, Arquiled shall inform and the Purchaser agrees to cooperate and provide all necessary information to allow Arquiled decide whether any claim is well-founded and whether the Contract will be terminated. Such information includes, namely, books, records, documents or other files.

 

14. Applicable Law and jurisdiction

All offers, confirmations and Contracts are governed by and construed in accordance with Portuguese law. All disputes emerging or relating to the Contracts must firstly be settled between the Purchaser and Arquiled through consultations and negotiations in good faith and in a spirit of cooperation. All disputes that cannot be settled amicably shall be subject to the exclusive jurisdiction of the courts of Lisbon, Portugal, provided that Arquiled is always authorized to bring actions or proceedings against the Purchaser in any court of competent jurisdiction. The United Nations Convention on International Sale of Goods shall not apply to any offer, confirmation or Contract. No part of Section 13 shall be reviewed or construed as limiting the rights of Arquiled or the Purchased under applicable law on the remedy of injunction or others in equity or to take steps to protect their remedy of appeal against the other party.

 

15. Breach and resolution

Without prejudice to the rights or remedies that Arquiled may have under the Contract or law, Arquiled may, by prior notice to the Purchaser, immediately terminate the Contract or any part thereof without any liability if:

(a) the purchaser breaches or infringes any of the provisions of the Contract;

(b) insolvency, bankruptcy (including reorganization) liquidation or dissolution proceedings are brought against the Purchaser, whether by the Purchaser, voluntarily or involuntarily, a trustee or liquidator relating to the Purchaser, or if any assignment is performed to the benefit of creditors of the Bank; or

(c) if changes occur in the control or ownership of the Purchaser.

Upon the occurrence of any of the events described above, all payments due by the Purchaser under the Contract shall be immediately due and payable. In the event of cancellation, termination or expiry of a contract, the terms and conditions provided for this purpose shall survive such cancellation, termination or expiry.

 

16. Miscellaneous

a) If any provision of these Terms and Conditions is deemed invalid or unenforceable by decision of a court of competent jurisdiction or by any future legislative or administrative action, this shall not affect the validity and enforceability of the remaining provisions. If any provision of these Terms and Conditions is finally deemed illegal or unenforceable, it shall be understood that said provision was removed from these Terms and Conditions, although all other provisions shall remain in force and applicable and, to replace any provision deemed illegal or unenforceable, a provision of similar meaning shall be added, reflecting the original intent of the clause as permitted by applicable law.

b) If either party fails or is late to exercise rights or remedies emerging from the Contract this shall not constitute a waiver, nor shall the resulting single or partial exercise preclude any other future exercise or other or the exercise of rights or remedies emerging from the contract or any related document or by law.

Sales Conditions – April 30, 2019 Review