1. Scope and Applicability
PCBMotor ApS, Danish Reg. No. 30509218 (“PCBMotor”) is engaged in the development, customization, production, sale and licensing of movement solutions such as motors integrated on printed circuit boards including components to such solutions, and related products and services, e.g. support with the design of integrated movement solutions.
Unless otherwise expressly agreed in writing, these General Terms shall apply between PCBMotor and its Customers with respect to Products sold and Services performed. Services mean assignments related to customization of PCBMotor’s motors.
2. Delivery of Products
Products are delivered Ex Works (Incoterms 2000) Krakasvej 17, DK-3400 Hillerød, Denmark. If PCBMotor undertakes to engage a freight forwarder on the Customer’s behalf, the passing of risk and other consequences of the prescribed delivery term shall not be altered thereby. If PCBMotor realises that an agreed delivery date cannot be adhered to, PCBMotor shall inform the Customer and indicate the expected duration of the delay. The parties shall immediately endeavour to find reasonable remedial measures.
If the Customer rightfully cancels an order due to delay, any claim for damages shall be limited to 5% of the price for the delayed Products, provided PCBMotor has not completed the delivery within a reasonable grace period set by the Customer.
Any claim for damages not forwarded within 10 days after the agreed delivery date shall lapse. Any further claims due to delay are excluded. With respect to continuous deliveries of Products, the Customer shall not be entitled to cancel orders that are not delayed. PCBMotor shall not be obliged to accept new orders.
Orders cannot be cancelled unless approved by PCBMotor in writing.
3. Performance of Services
PCBMotor shall ensure that Services are performed conscientiously and with the optimum utilisation of the expertise at PCBMotor’s disposal. If a budget has been agreed, PCBMotor shall obtain the Customer’s consent before incurring costs that exceed the total budget. During the performance of Services, PCBMotor shall produce periodic information, containing a summary of the work performed and results achieved, as well as an assessment of the progress made towards completion of the Services.
Any request for changes shall be forwarded in writing. In reply to such requests PCBMotor shall assess any influence on time and payment schedules agreed. The Customer may request that PCBMotor suspends further work until revised terms have been agreed, but PCBMotor shall not be obliged to change agreed specifications before agreement has been reached on the impact of the requested changes.
If it becomes apparent that a milestone or deadline will be exceeded to any significant extent, PCBMotor shall inform the Customer of the fact so reasonable measures may be decided. PCBMotor shall not be liable in the event of delays, nor if the objective of the Services is not obtained.
4. SOFTWARE
If PCBMotor’s deliverables include software the following provisions shall apply thereto:
PCBMotor grants to Customer a non-transferable, non-exclusive license to use the software, integrate the software in Customer’s applications made with piezo ceramic components bought from PCBMotor, sell such applications and allow buyers thereof to use such applications with the integrated software. The license does not include a right to use or transfer the software to other applications. Unless explicitly stated by PCBMotor, permitted use of the software is free of royalty.
Unless otherwise prescribed by PCBMotor, Customer may modify the software, provided such modifications remain subject to the provisions of these Terms.
The source and object code of the software, and algorithms, concepts, techniques, methods and processes embodied therein, may constitute trade secrets and confidential and proprietary information of PCBMotor, and Customer shall not access, decompile, disassemble, or otherwise reverse engineer, or attempt to access or derive the source code of compiled software or use such trade secrets and information in any manner not permitted by PCBMotor in writing.
Software is delivered “as is”, and PCBMotor undertakes no liability with regard to software.
5. Intellectual Property Rights
These General Terms shall not constitute or imply any transfer of, or grant of license to, intellectual property rights (“IPR”) held or generated by PCBMotor, except for a license from PCBMotor to the Customer allowing the Customer to use PCBMotor’s technology to use and integrate Products purchased from PCBMotor in accordance with specifications approved by PCBMotor. Any transfer of, or grant of license to, IPR generated by PCBMotor during a collaboration shall be subject to written agreement, in the absence of which no transfer, etc., is made. PCBMotor shall be unrestricted in its right to use IPR generated by itself, unless PCBMotor has accepted specific limitations in writing. Each of the parties shall free of charge be entitled to use IPR generated jointly by the parties.
Any use worldwide by the Customer and its affiliates of the technology covered by the claims contained in PCBMotor’s PCT patent application No. PCT/DK2006/000595 regarding an Electro-Mechanical Wave Device as published by International Publication No. WO 2007/048421 A2 shall be subject to either (i) an agreement regarding the Customer’s exclusive purchase of piezo elements for devices described in the above-mentioned patent application from PCBMotor or (ii) a royalty agreement with PCBMotor. Any transfer of PCBMotor’s confidential and proprietary technology and knowhow by the Customer shall also be subject to explicit agreement with PCBMotor. Any breach by the Customer of the terms in this paragraph shall in addition to damages entitle PCBMotor to a contractual fine of EUR 1,000,000 from the Customer; for continuing breaches a new fine of EUR 1,000,000 shall fall due for each commenced month breaches continue.
The Customer shall keep all records of account as are necessary to demonstrate compliance with its obligations for the past 5 years. PCBMotor shall have the right, upon 5 business days’ advance notice to the Customer, to inspect, or have inspected by independent auditors the Customer’s books, records, and other documentation including computer files during normal business hours to determine whether the Customer is complying with these terms and to determine the accuracy of any royalty reports. Such audit shall be at PCBMotor’s expense unless it reveals an underpayment of amounts due of 5% or more, in which case the Customer shall reimburse PCBMotor for the reasonable costs of such audit. Any deficiencies shall be promptly corrected. Auditors may be subjected to usual confidentiality undertakings.
To avoid preventing PCBMotor and PCBMotor’s other customers from using PCBMotor’s technology, PCBMotor shall be free to use and allow others to use technology generated, even if patented, by the Customer involving PCBMotor’s technology. The parties may agree in a specific written agreement that the free right of use of the Customer’s technology shall not apply in certain applications where the Customer makes commercial use of the particular PCBMotor related technology generated by the Customer.
To all products comprising PCBMotor’s technology, packages containing them, and to documentation accompanying the products, the Customer shall ensure that the following text is conspicuously affixed: “Patented under US7,723,900, CN200680039882.6, EP1941608, JP5265370, ZL200680039882.6 and produced under license from PCBMotor ApS”. The patent information may be updated from time to time, and the text shall then be updated accordingly as soon as reasonably possible. The Customer shall be liable towards PCBMotor for any loss or damages caused by omission of this duty.
6. Confidentiality
Any information, such as, but not limited to, information on products, processes, technology, results, materials, designs, prices, and any physical material of a party that is (i) indicated to be confidential, and either (ii-a) marked “confidential” or (ii-b) confirmed in writing within 10 days to be confidential, or (iii) obviously to the receiving party of a confidential nature, shall be treated and maintained as confidential by the receiving party. Information that is, or without breach of the above obligations becomes, part of the public domain; information already in the possession of a party; information received from a third party who was entitled to disclose such information; and information independently developed, shall be excluded as confidential information.
Always subject to the duty of confidentiality, the parties may use each other’s confidential information for purposes within their publicly known field of business, unless the confidential information has been marked “special confidential information” and the parties prior to its disclosure have agreed specific limitations of use in writing. However, the Customer shall not without prior written consent be entitled to use PCBMotor’s confidential information for purposes other than what is necessary for utilising PCBMotor’s Products or Services.
The duty of confidentiality shall last for 5 years after each disclosure, unless a longer duration has been agreed in writing prior to disclosure.
Unless otherwise agreed, PCBMotor shall be entitled to state the Customer’s name in PCBMotor’s list of references.
7. Prices and Payment
All prices are exclusive of any applicable sales or value added taxes as well as transportation and insurance charges. Such taxes and charges will be stated separately on invoices.
Services shall be paid for according to (i) an agreed payment schedule with respect to lump sums or, in the absence thereof, (ii) monthly invoices based on PCBMotor’s hourly rates and rates for the use of special equipment plus expenses incurred for materials, travel, deliveries from sub-suppliers, etc.
All payments shall be effected in the quoted currency upon submission of purchase orders, unless terms of credit have been agreed.
In the event of delayed payment, PCBMotor shall upon giving one week’s notice be entitled to terminate all, or some, pending deliveries or Services. Simultaneously, all outstanding amounts shall fall due regardless of previously granted terms of credit. On delayed payments an interest of 1% per commenced month is accrued.
Until payment has been received in full by PCBMotor, title to the Products shall remain with PCBMotor, and in the event of non-payment, PCBMotor shall, in addition to all other rights and remedies available to it, be entitled to recover possession of the Products.
The net effect of any public charges, taxes, including withholding taxes, or other dues on Customer’s royalty payments to PCBMotor (except for income tax in Denmark) shall be borne by Customer as the royalties stated are net of any such taxes.
8. Limited Warranty
PCBMotor warrants that its Products shall be manufactured and its Services performed in accordance with good workmanship. This warranty is expressly made in lieu of any and all warranties, express or implied, including, without limitation, warranties of merchantability and fitness for any particular purpose. PCBMotor does not warrant any functionality of designs, etc. furnished by the Customer. The Customer shall examine Products and Services upon receipt, and any alleged breach of warranty shall be notified to PCBMotor immediately. The sole liability of PCBMotor for breach of warranty shall at PCBMotor’s discretion be the prompt repair or replacement of non-conforming Products and rework of non-complying Services, provided such rework is possible and commercially reasonable. If such corrective actions fail within a reasonable period of time, the Customer shall be entitled to a price reduction or to cancel the purchase of the non-conforming Products. The warranty expires 6 months after delivery.
9. SECURITY OF SUPPLY
If PCBMotor is declared bankrupt or permanently ceases to do business, the Customer shall be entitled to use PCBMotor’s technology to continue existing product lines, subject to the Customer’s payment of a royalty equal to the difference between the prices previously paid to PCBMotor and reasonable prices paid to a supplier of the parts previously supplied by PCBMotor in similar volumes. The Customer shall be entitled to have specifications and other relevant documentation deposited in an escrow of its choice but approved by PCBMotor. The costs of establishing and maintaining the escrow shall be borne by the Customer. Only if an event as described above occurs may the escrow be released.
10. Infringement
PCBMotor warrants that to the best of its knowledge the Products will not infringe any third party’s copyrights, patents, trade secrets, or other proprietary rights. PCBMotor, at its expense, will defend the Customer against any claim based on an allegation of such infringement, and PCBMotor will pay any resulting costs and damages awarded against the Customer that are attributable to such infringement and will pay the part of any settlement that is attributable to such infringement provided that (1) the Customer notified PCBMotor promptly in writing of the claim; (2) PCBMotor was permitted full control of the defence or settlement of the claim; and (3) the Customer cooperated reasonably in such defence or settlement at PCBMotor’s expense. In its defence or settlement of any such claim, PCBMotor may at its discretion: (A) procure for the Customer a right to continue using or selling the Products; (B) modify the manufacturing process so that the use or selling of the Products becomes non-infringing but still in all material aspects retains the same form, fit and level of functionality and performance; or (C) replace the Products with equivalent products not subject to such claim.
The Customer shall offer an infringement warranty similar to the above concerning designs and like information furnished by the Customer to PCBMotor. The Customer shall pay any resulting costs and damages awarded against PCBMotor that are attributable to such infringement and will pay the part of any settlement that is attributable to such infringement subject to the same provisions that are applicable to PCBMotor’s warranty (1-3 and A-C).
PCBMotor shall not be liable towards the Customer in respect to any inability to deliver Products to the extent such inability is due to an alleged infringement or other violation as described above or an injunction or lawsuit in the same respect.
PCBMotor’ duty of indemnification is in lieu of any and all other remedies of the Customer with respect to infringement and shall only be valid in countries where PCBMotor delivers Products or countries designated by the Customer when purchasing Products.
PCBMotor does not warrant that the results of its Services do not infringe any third party’s copyrights, patents, or other proprietary rights.
11. General Limitations of Liability
PCBMotor shall in no event be liable for any liability, loss or damage arising, directly or indirectly, from the use of the Products or the Services or for any special, incidental, indirect, exemplary or consequential losses or damages, including but not limited to loss of opportunity, use, income or profit, or interrupted operation, nor shall PCBMotor be liable for any post-processing or misappropriate use, handling or exposure of the Products or based on the Services. PCBMotor cannot be held responsible if PCBMotor’s Products or Services fail to produce the required or expected result nor for costs defrayed in vain.
PCBMotor’s aggregate liability whether in contract, warranty, tort or otherwise, arising out of, connected with, or resulting from the performance or non-performance of any agreement shall in no event exceed the lesser of sums paid by the Customer to PCBMotor during the 12 months prior to the Customer becoming aware of the basis for a claim towards PCBMotor, or 100,000 Danish kroner. PCBMotor’s use of resources shall be included in the above amounts.
PCBMotor cannot be held liable for any loss or damages unless a written request for compensation is made within 6 months after the delivery of the Products or the performance of the Services to which the liability relates.
12. Product Liability – Indemnification
The Customer shall be entirely responsible for the use to which it puts the Products or the Services. For personal injuries and damage to consumers’ goods, PCBMotor remains liable in accordance with applicable mandatory laws, however, PCBMotor disclaims all liability for damage arising from the fact that recognised scientific and technical expertise used later proves to be incorrect or defective. The Customer shall, none-the-less, indemnify PCBMotor for any loss or damage resulting from the Customer’s, its employees’ and its customers’ use of the Products and the Services, or caused by the Products or the Services, including product liability.
13. Termination
In the absence of other written agreement, each party may terminate the performance of Services with one month’s written notice. If it becomes apparent to PCBMotor that a successful outcome of its Services is unlikely, PCBMotor may terminate its performance of Services immediately.
14. Force Majeure
PCBMotor shall not be liable for any delay or failure to perform, if such delay or failure results from fire, explosion, labour dispute, earth quake, casualty or accident, lack or failure of transportation facilities, epidemic, flood, drought, or by reason of war, declared or undeclared, revolution, civil commotion, the act of a public enemy, blockade or embargo, act of God, any inability to obtain any requisite license, permit or authorization, or by reason of law, proclamation, regulation, ordinance, demand, or requirement of any government, late or defective deliveries from sub-suppliers or by reason of any other cause whatsoever, whether similar or dissimilar to the enumerated, beyond the reasonable control of PCBMotor. With respect to labour disputes, PCBMotor shall not be obliged to accede to any demands being made by employees or other personnel. All such causes entitle PCBMotor to a reasonable postponement of the performance of its duties. However, the Customer shall be entitled to terminate an affected order or delivery if and when the delay has exceeded 3 months.
15. Survival of Certain Provisions
All obligations, liabilities and limitations that, by their nature, are intended to survive expiration or termination shall remain in effect beyond any expiration or termination of these General Terms and any agreement of which they are part.
16. Disputes
Unless the parties agree otherwise, any dispute arising out of or in connection with these General Terms shall be settled by the District Court in Hillerød, Denmark.
Danish law, except its choice of law rules, shall apply.