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Dispelix General Terms of Purchase

V1, last updated 23 September 2019

1. Agreement

1.1 Dispelix Oy (“Dispelix”) is a supplier and developer of certain optical see-through technology.

1.2 This “Agreement” shall mean these Dispelix General Terms of Purchase, together with the Purchase Order of Dispelix to Supplier, and it shall govern the purchase by Dispelix of Products and/or Services (as applicable) from Supplier as defined in the Purchase Order. “Supplier” shall mean the entity addressed in the Purchase Order.

1.3 Dispelix is not bound by and hereby expressly rejects Supplier’s general conditions and any additional or different terms or provisions that may appear on any document used by Supplier, unless Dispelix has expressly agreed to amend a certain term in this Agreement by a document signed by an authorized signee of Dispelix expressly referring to a specific term of this Agreement to be amended.

 

2. Definitions

2.1 “Affiliate” means any business entity that controls, or is controlled by, or is under common control with a party to this Agreement. For the purposes of this definition, ‘control’ shall mean direct or indirect ownership of at least fifty percent (50%) of the voting power, capital or other securities of controlled or commonly controlled entity.

2.2 “Background IP” means all IP owned or created by a party i) before this Agreement, or (ii) during this Agreement independently of this Agreement.

2.3 “Custom Product” means a custom-made product that is developed by Supplier under a Purchase Order.

2.4 “Defect” or “Defective” means a failure to meet the requirements set forth in the Purchase Order.

2.5 “Foreground IP” means any IP created by or on behalf of a party in connection with this Agreement. For clarity, Foreground IP shall not mean Background IP.

2.6 “IP” means any inventions, patent rights, copyrights, trademark rights, rights in trade secrets, design rights, database rights, domain name rights, and any other form of intellectual property rights (whether registered or unregistered) throughout the world and anything protectable by any of the foregoing rights.

2.7 “Product” means any product sold by Supplier, including any generally available products and Custom Product.

2.8 “Purchase Order” means the relevant purchase order of Dispelix, together with the relevant statement of work and/or Specifications (if applicable).

2.9 “Services” means any services provided by Supplier.

2.10 “Specifications” means the specifications identified in the Purchase Order or as the parties may otherwise agree to in writing.

 

3. Scope and Changes

3.1 Supplier shall deliver the Products and/or perform the Services (as applicable) in accordance with the terms of this Agreement.

3.2 No exclusivity of any kind is granted to Supplier and Dispelix is entitled to purchase products and services from other suppliers at its free discretion.

3.3 If Dispelix wishes to make any changes to the Purchase Order prior to delivery, the parties undertake to negotiate in good faith in order to agree on such changes. Supplier shall not unreasonably withhold or delay agreement to any change requested by Dispelix.

 

4. Delivery and Acceptance

4.1 Unless otherwise specified in the Purchase Order, Supplier shall deliver Products DDP (Incoterms 2010) to the destination stated in the Purchase Order. Title to the Product shall transfer to Dispelix upon delivery.

4.2 Supplier shall package the Product properly to withstand handling, transport and storage conditions in accordance with industry standards and the nature of the Product and in accordance with Dispelix’s reasonable instructions (if any).

4.3 Dispelix has the right to inspect the Product or Services at any time or place. This right does not relieve Supplier from any of its obligations under this Agreement.

 

5. Payment

5.1 Unless otherwise agreed in the Purchase Order, Supplier may invoice Dispelix upon Dispelix’s acceptance of the Product or Services, and Dispelix shall pay the accepted invoices within 45 days from the receipt of the invoice. The price stated in the Purchase Order shall be the total compensation payable by Dispelix for the respective Products or Services. No other costs may be charged to Dispelix unless otherwise has been specifically agreed in the Purchase Order.

5.2 Prices do not include any applicable taxes. Dispelix shall pay correctly specified taxes for applicable Products or Services. If legally required, Dispelix shall withhold taxes from its payments to Supplier and provide a withholding tax certificate.

 

6. Intellectual Property Rights

6.1 Background IP of a party is owned by that party.

6.2 The following applies for Custom Product and any other results created in connection with this Agreement:

6.2.1 Any Foreground IP shall be owned by and transfer to Dispelix.

6.2.2 If Custom Product intends to incorporate any Background IP of Supplier, Supplier shall list such Background IP in the Purchase Order. Supplier hereby grants Dispelix and its Affiliates a perpetual, irrevocable, non-exclusive, sublicensable, transferable, royalty-free, fully-paid, worldwide license to use, modify, sell, market, import, and otherwise dispose of such Background IP in connection with the Custom Product and Foreground IP.

6.2.3 Supplier shall not incorporate any IP or materials of a third party into Custom Product without Dispelix’s prior written approval.

6.3 Any Dispelix Background IP and confidential information provided by Dispelix to Supplier are property of Dispelix shall only be used by Supplier for the purpose of and only to the extent needed by the Purchase Order and not for any other purpose (such as for the benefit of Supplier or any third party), and they shall be returned to Dispelix immediately upon request of Dispelix or latest at the end of the Purchase Order.

 

7. Services

7.1 If Supplier performs Services to Dispelix, the following is applied:

7.1.1 Supplier shall perform the Services in accordance with the Purchase Order and any reasonable instructions of Dispelix.

7.1.2 If the Services do not meet the requirements of the Purchase Order, Supplier shall re-perform the non-conforming Services at no charge to Dispelix or, at the option of Dispelix, give a refund for Dispelix for any amounts paid for the non-conforming Services.

 

8. Defects

8.1 If there is a Defect in the Product, Supplier shall, at its expense and at Dispelix’s discretion, replace or repair the Product or refund Dispelix the Product purchase price. The discretion of Dispelix shall be exercised fairly and reasonably. Supplier is responsible for all costs and damages incurred by Dispelix as a result of Defective Product.

 

9. Warranties

9.1 Each party represents and warrants that it has the right to enter into this Agreement and fulfil its obligations under this Agreement and that this Agreement does not violate any agreements it has with a third party.

9.2 Supplier represents and warrants that

9.2.1 the Products and Services comply with and are of the quality agreed in the Specifications,

9.2.2 Supplier shall perform the Services in a timely, competent and professional manner,

9.2.3 the Products are of merchantable quality and fit for the purpose made known to Supplier. Otherwise the Products shall be fit for the purpose for which similar goods are ordinarily used,

9.2.4 the Products and Services are free from defect in design, workmanship and materials,

9.2.5 the Products and Services are in compliance with the applicable regulations and/or standards,

9.2.6 to Supplier’s knowledge, the Products or Services do not infringe any IP of any third party.

9.3 Such representations and warranties shall be in addition to all other warranties (express, implied and statutory).

 

10. Confidential Information

10.1 All confidential information disclosed by Dispelix (including but not limited to any specifications, files, documents, materials, products, samples and tools) is the property of Dispelix, and Supplier shall not use confidential information for any purpose other than for the purpose of this Agreement and shall not disclose confidential information to any third party and Supplier shall protect confidential information against disclosure to third parties with at least the same degree of care with which Supplier protects its own confidential information but with no less than a reasonable degree of care.

10.2 Supplier shall limit the circulation of confidential information to such employees of Supplier that have a need to know confidential information in order to carry out the purpose of this Agreement and provided that such employees are bound by appropriate confidentiality obligations.

10.3 Supplier may not refer to this Agreement or the cooperation between the parties.

 

11. Liability

11.1 If Supplier fails to supply the Products or perform the Services (as applicable) in accordance with this Agreement and/or there is a Defect in the Product, the Supplier shall without delay and at its own cost remedy the breach or Defect.

11.2 Supplier shall defend and indemnify Dispelix, its Affiliates and their employees, directors and officers against any and all claims, liabilities, damages, losses, costs, fees (including reasonable legal and attorney fees), and expenses relating to or arising from i) Supplier’s breach of any term of this Agreement, ii) breach of Supplier’s representations and warranties, iii) Supplier’s negligence, willful misconduct, fraud, misrepresentation, or violation of law.

11.3 Neither Party shall in any case be liable, in contract, tort or otherwise, for any indirect, special or consequential cost, damages or expense arising out of or relating to this Agreement. This limitation of liability does not apply to breaches of confidentiality obligations.

 

12. Termination

12.1 Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to remedy that breach within 30 days after written notice.

12.2 Dispelix may terminate this Agreement for convenience for 45 days’ written notice.

12.3 Supplier shall stop working on the Purchase Order immediately upon receipt of the termination notice from Dispelix. If termination is made before the scheduled delivery date, Supplier may invoice Dispelix for work completed at a pro-rated price based upon the proportion of work completed prior to the date of termination.

12.4 Such terms that by their nature are intended to survive termination of this Agreement shall continue to govern also after termination of this Agreement.

 

13. Miscellaneuos

13.1 This Agreement shall be governed by the laws of

Finland, without regard the rules on conflict of laws.

13.2 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English.

13.3 For the sake of clarity, nothing shall be deemed to limit a right to seek temporary injunctive relief or to enforce an arbitration award in any applicable and competent court of law.

13.4 Supplier shall follow all applicable export control laws and regulations.

13.5 Supplier may not use subcontractors without Dispelix’s written consent. Supplier shall request the consent from Dispelix by naming the subcontractor in question and Supplier shall also request a consent from Dispelix for changing the named subcontractor. Supplier is liable for the performance of its subcontractors of the terms of this Agreement as of its own performance and Supplier shall ensure that its subcontractors are bound by written terms at least restrictive as in this Agreement.

13.6 Neither party may assign this Agreement without the prior written consent of the other party.

13.7 Neither party’s failure to exercise any of its rights under this Agreement shall constitute a waiver of those rights or any other rights hereunder.

13.8 If any term of this Agreement is held to be void, illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and the void, illegal or unenforceable term shall be replaced by a new one being commercially as close to the replaced term as legally possible.

13.9 This Agreement does not create any agency, partnership, or joint venture between the parties.

13.10 Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.