1.Purchase and Sale
- CUSTOMER, upon signing the face of this Order, irrevocably agrees to purchase from Digitech Solutions SARL (or any Digitech entity, collectively "DT"), the products, additional features and parts (excluding any software) described herein (the "Equipment"), and to take a personal, non-transferable, non-exclusive license to use the Software (defined below), in object code format, to process its own data on the Equipment at the Site (defined below) subject to the terms and conditions of this Order; and DT upon execution of this Order, agrees to sell the Equipment and to grant a license to use the Software to CUSTOMER;
- 2.1. DT shall use commercially reasonable effort to adhere to the Anticipated Delivery Date stated on the face of this Order, but DT shall not be liable for any loss of any kind or sort resulting from any delay in delivery; 2.2. The Equipment &Software shall be delivered FOB (free on board) INCOTERMS 2000 named port herein. Carriage up to and inside the Site shall be exclusively performed by CUSTOMER at its risk and expense. Equipment and the Software may be delivered in partial shipments.
3. Risk, Title and Security Interest
- 3.1. Risk of loss or damage to the Equipment and Software shall pass to CUSTOMER upon delivery FOB INCOTERMS 2000 named of port stipulated herein; 3.2. Until CUSTOMER paid DT all amounts hereunder and other amounts due by CUSTOMER: (I) title to the Equipment shall remain exclusively with DT, notwithstanding the manner in which the Equipment may be attached to realty; (ii) CUSTOMER shall register the title retention pursuant to applicable laws; (iii) CUSTOMER shall not sell, lease or otherwise dispose of the Equipment, shall take proper care of the Equipment and shall keep the Equipment at the Site free and clear from any and all liens, pledges, security interests, encumbrances and rights of any third party, except those created by DT; (iv) CUSTOMER shall give DT immediate notice of any judicial process or encumbrance affecting the Equipment and shall indemnify and hold DT harmless against any loss or damage caused thereby; (v) DT may withhold certain passwords or access codes that enable operation of the Equipment; (vi) CUSTOMER shall purchase and maintain, at its own expense, an “All Risk” insurance covering the Equipment against any risk, damage, act of God of any nature, and shall name DT as beneficiary thereof.
- 4.1. The Equipment and Software require consistently superior quality supplies, imaging products (including, but not limited to, ink and substrates), accessories and operator maintenance parts compatible with the Equipment specification (collectively the "Supplies"), which CUSTOMER may purchase from DT and/or its affiliates. CUSTOMER is entitled to purchase Supplies from any third party, at its own risk, provided, however, that by such purchase and use of Supplies, CUSTOMER shall be deemed releasing any DT’s obligation hereunder or under the Warranty, Warranty shall be deemed null and void, and CUSTOMER shall be deemed waiving any claim or demand against DT, relating to or connected with Equipment or Software performance, print quality, yield, durability, etc;
5. Software License and Intellectual Property
- 5.1. All software and any part thereof supplied with the Equipment, including, but not limited to, computer programmes, documentation, manuals and any updates and modifications, are protected by copyright and proprietary to DT and to third party licensors which provide software to DT (the "Software"). DT grants to CUSTOMER a perpetual, non-transferable, non-exclusive, royalty-free license or sub-license, as the case may be, to use the Software on the single unit of the Equipment of DT on which the Software is first installed, for CUSTOMER's own internal business only; 5.2. The aforesaid license of the Software will automatically terminate upon (i) transfer of the Software and/or transfer of the Equipment on which the Software is first installed, to a third party without receiving DT’s written approval and without the transferee undertaking in writing the license conditions stipulated herein, or (ii) transfer of the Equipment to a country different than the country stipulated for the Site, or (iii) termination and/or cancellation of this Order, or (iv)
failure by CUSTOMER to comply with any of the conditions of this Order; 5.3. CUSTOMER shall not make any use of any trade name, trade mark, service mark, design right, copyright or patent of DT or of DT's third party licensors; 5.4. CUSTOMER shall not disassemble or decompile the Software; 5.5. Title to the Software shall remain the sole property of DT.
6. Limited Warranty and Liability
- 6.1. FOR A PERIOD OF TWELVE MONTHS (for a New Equipment as defined on the face of this Order) or FOR A PERIOD OF SIX MONTHS (for a Used Equipment) AS OF THE DAY OF THE EXECUTION OF THE CERTIFICATE OF INSTALLATION OF THE EQUIPMENT (“COI”) (THE "WARRANTY PERIOD"), DT WARRANTS, SUBJECT TO CONDITIONS 6.3, 6.4, 6.5 OF THIS ORDER, THAT EACH COMPONENT (WITH THE EXCLUSION OF CONSUMABLES (E.G. FILTERS)) OF THE EQUIPMENT AND SOFTWARE SHALL CONFORM IN ALL MATERIAL RESPECTS TO THE SPECIFICATIONS OF THE EQUIPMENT (ALTHOUGH DT DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION), AND THAT THE NEW EQUIPMENT CONTAINS AT LEAST 91% BRAND NEW PARTS, WITH THE REMAINING PARTS COMPRISED OF REMANUFACTURED, REPROCESSED OR RECONDITIONED PARTS THAT HAVE BEEN DISASSEMBLED AND REASSEMBLED IN ACCORDANCE WITH DT'S HIGHEST STANDARDS; 6.2. During the Warranty Period, DT shall repair or replace, at its discretion, any item of the Equipment or Software, which does not comply with the warranty given in Condition 6.1 above, provided that (i) CUSTOMER has issued and complied with DT’s Return Material Authorisation (“RMA”) procedure, and (ii) CUSTOMER has paid in advance any travel and /or accommodation expenses due for the respective repair on Site, which CUSTOMER acknowledge to be not included as an expense covered by the Waranty; 6.3. Under no circumstances shall DT be liable for any (a) repair
or replacement needed in whole or in part, as a result of catastrophe; inappropriate physical or operating environment; improper storage, transportation, handling, installation, operation, use, removal, modification, maintenance or repair carried out other than by DT; negligence or fault of CUSTOMER; deviation from recommended maintenance procedures, inter alia, stipulated in Equipment documentation; removal of the Equipment and Software from the Site; failure of electrical power, communication lines or foreign interconnect equipment; hardware or software not provided by DT; normal wear and tear; or accident; (b) operation of the Equipment by a person not approved and/or trained by DT; (c) electrical or other work external to the Equipment or Software; (d) rubber parts, printing heads and Supplies; and (e) operation of the Equipment with Supplies and/or Consumables which are manufactured by any third party and which were not approved by DT to be compatible with the Equipment and comparable to, and of at least the same quality and performance as those supplied by DT, DT suppliers or their affiliates. 6.4. This warranty applies only if (a) DT has received a written notice from CUSTOMER giving details of the defective item before the end of the Warranty Period, (b) DT has been afforded a reasonable opportunity to inspect the item in question, and (c) CUSTOMER has provided, at its expense, all assistance and support necessary for DT to fulfil its obligations under this warranty. 6.5. EXCEPT FOR THIS EXPRESS WARRANTY, DT IT’S AFFILIATES, SUPPLIERS OR LICENSORS GIVES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND THE PROVISIONS OF OR FAILURE TO PROVIDE SUPPORT SERVICES; 6.6. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DT IT’S AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF USE, LOSS OF
OR DAMAGE TO DATA OR RECORDS, DAMAGE TO GOODWILL, AND ALL OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES (OTHER THAN LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING ONLY FROM GD'S FAULT) OF CUSTOMER AND/OR IT’S CLIENTALE; AND THE EXTENT OF DT'S LIABILITY SHALL NOT EXCEED THE COST OF REPAIRING OR REPLACING THE DEFECTIVE.
7. Payments and Net Prices
- 7.1. All Prices are FOB net and do not include withholdings and other taxes, levies, duties or deductions of any nature whatsoever, which shall be paid by CUSTOMER; 7.2. CUSTOMER undertakes to pay in a timely fashion and shall indemnify and hold DT harmless against all duties, levies, taxes and other governmental charges of any kind and any interest or penalties thereon which may be levied, directly or indirectly, against the Equipment and/or the Software; 7.3. CUSTOMER shall not suspend its payment obligations or set-off or deduct any amount charged by DT for any reason whatsoever; 7.4. If CUSTOMER is in default in respect of the payment of any sum payable under this Order, then without the need for DT's prior notice of default, and without prejudice to DT's other rights and remedies, DT shall have any or all of the following rights, which CUSTOMER hereby irrevocably accepts and waive any claim in respect thereof; (a) all sums shall immediately become due and payable to DT, notwithstanding any credit conditions granted to CUSTOMER, (b) DT may delay
or suspend delivery or cancel any or all Orders or contracts with CUSTOMER, (c) DT may not release the monthly code for the operation of the Equipment and Software, thereby preventing CUSTOMER from operating the Equipment and Software, and (d) DT may retain any amount already paid to it by CUSTOMER and CUSTOMER acknowledges that such amount shall be regarded as partial liquidated damages of DT; - 7.5. In addition to all other remedies provided herein or by law, CUSTOMER shall pay DT interest at the rate prescribed by European Directive 2000/35/CE on all overdue sums from the due date until the outstanding sums are fully paid;
8. Termination and Suspension
8.1. Without prejudice to DT's other rights and remedies, DT is entitled, at its sole discretion and without prior notice of default to CUSTOMER, to immediately suspend the performance of its obligations under this Order or terminate this Order, in whole or in part, by a written notice, if (a) CUSTOMER breaches one or more of its obligations under this Order and such breach is not cured within three days from the day on which the obligation has to be performed or (b) CUSTOMER becomes insolvent, there is any act of bankruptcy regarding CUSTOMER, or any application is filed or resolution passed for the bankruptcy, dissolution, liquidation, receivership, re-organisation or insolvency or similar proceeding against/of CUSTOMER; 8.2. Under any of the circumstances described in Condition 8.1 and without the need for DT's prior notice of default, all sums shall become immediately due and payable to DT, notwithstanding
any credit conditions granted to CUSTOMER; 8.3 CUSTOMER is not authorised to terminate this Order, other than if DT does not deliver to CUSTOMER the Equipment.
9.1 . USA Export Restrictions- CUSTOMER acknowledges that the Equipment and the Software are subject to U.S.A. export restrictions and shall not be exported without the appropriate licenses therefore; 9.2. No Assignment- Customer may not assign any of its rights or obligations hereunder to any party. DT may delegate or assign any of its duties hereunder to any party that DT considers qualified to perform that duty; 9.3.Force Majeure. DT shall not be liable for any delay or failure in the performance of its obligations under this Order, when such delay or failure is caused in whole or in part by circumstances beyond its reasonable control or force majeure preventing or hindering performance; 9.4. CUSTOMER shall keep confidential and not disclose to any other party all information, data and manuals received from DT and undertakes to use such information, data and manuals solely in connection with the operation of the Equipment and Software. CUSTOMER shall not inform third parties of the contents of this Order, including the prices mentioned herein, without the prior written approval of DT. 9.5. Conflict or Inconsistency- In the event of any conflict or inconsistency between the terms and conditions of this Order and any terms or conditions set forth in any invoice, annex or other document relating to the transactions contemplated by this Order, the terms and conditions set forth in this Order shall prevail; 9.6. No Waiver of Rights- DT’s failure at any time to require strict performance by Customer shall not constitute waiver of or diminish DT’s right to demand strict compliance with any provision of this Order. Waiver by DT of any default shall not constitute waiver of any other default. No rights or remedies referred to herein shall be exclusive, but shall be cumulative and in addition to any other right or remedy set forth herein or by law; 9.7. Notices- Any notice required or permitted hereunder will be deemed duly given if sent by registered airmail or facsimile to the addresses of the parties first stated
above; 9.8. Sole Agreement- This Order represents the sole and entire agreement and understanding between the parties and supersedes and replaces all previous contracts or understandings, written or oral, with respect to the Unit. No amendment of the terms hereof will be binding unless signed by Customer and by DT; 9.9. Proper Law and Jurisdiction. The laws of Lebanon shall govern this Order and the conditions stipulated herein. CUSTOMER expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Order. All disputes in connection with this Order and the conditions stipulated herein shall be subject to the exclusive jurisdiction of the competent courts of Beirut, Lebanon, unless DT decides to act in another competent jurisdiction based on the domicile, business premises or location of assets of Customer.