Please read the DCX general terms and conditions of sale („GTC”) below carefully. By accepting and /or ordering any products and/or services accompanied by these GTC, you acknowledge that you have read the GTC, understood them and that you agree to be legally bound by their provisions.
Please note that the GTC may be amended by us from time to time.
Last modified: 1 january 2022

DCX GENERAL TERMS AND CONDITIONS OF SALE

1. Introduction

The following general terms and conditions of sale („GTC”) apply to the sale of or by DCX Ltd. or DCX Polska Sp. z o.o., as relevant, („DCX” or „Party”) Products and/or provision of Services.

These general terms and conditions of sale form part of any quotation / offer / proposal or a similar offering provided by DCX for the sale of its Products and/or Services and, unless otherwise agreed in writing, apply to any sales contract, agreement or undertaking („Contract”) entered into by and between DCX and you („Customer” or „Party”).

Last modified: 1 January 2022

2. Definitions

The following expressions have the meaning assigned to them hereinbelow unless the context would obviously require otherwise:

„Affiliate” means a legal entity that is controlled by, controls, or is under common control with DCX or you, respectively. Control means more than 50% of the voting power or ownership interests.

„Contract” means the Product supply or Services providing contract agreed in writing or otherwise between the Parties, including these GTC incorporated by reference, regarding the supply of Products or rendering Services or Customer’s order referring to DCX’s quotation, offer, proposal or any other offering together with DCX’s acceptance of such order.

„Customer” means the customer set out in the Contract.

„DCX” means DCX Ltd. or DCX Polska Sp. z o.o., as applicable

„General Terms and Conditions of Sale” or „GTC” means these General Terms and Conditions of Sale.

„Delivery” means delivery of Hardware and / or Software (if applicable) to a place within the Territory agreed by the Parties in an order or otherwise in the Contract as per the agreed delivery term.

„Documentation” means the user documentation and related technical and/or operational information specified in the Product specifications, DCX manuals and/or DCX websites, including written and/or oral communications containing guidance, video instructions or otherwise provided by DCX in the Contract.

„Hardware” means equipment included in any Product.

„Party” means DCX or Customer.

“Product” means any Hardware and/or Software specified in the Contract.

„Service” means any service rendered by DCX as specified in the Contract.

„Software” means any computer software program in object code in any Product, if applicable.

„Territory” means the territory of the European Economic Area, unless otherwise agreed in an order or Contract.

„Third Party Product” means a third party Documentation, Hardware or Software delivered by DCX as specified in the Contract.

3. Quotations and Ordering

• Any quotation issued by DCX shall not be construed to be an offer within the meaning of the Polish Civil Code. Where relevant, the description of the Products and Services and related pricing is stated in a quote provided to you by DCX. If you wish to procure the Products and/or Services quoted, you may place an order by issuing a purchase order that references the DCX quote. A Contract between you and DCX is formed when DCX issues you with an order confirmation or otherwise accepts a purchase order issued by you on the basis of the quotation and GTC and you meet the detailed requirements laid down in the quotation, e.g. you make the required payment. The terms of any Service documents referred to in a customer quote or order confirmation shall be deemed to be incorporated into the Contract. For the avoidance of doubt, to the extent that DCX accepts a purchase order from you: (a) DCX rejects all additional or inconsistent terms that may be contained in any purchase order or other documentation submitted by you in connection with your order; and (b) DCX conditions its acceptance on the application of these GTC. Delivery dates are indicative.

4.Terms of Delivery

• Delivery term shall each time be specified in a quotation or Contract. Unless otherwise agreed, delivery terms shall be EXW (Incoterms 2020). EXW (Incoterms 2020) means DCX is responsible for making the Products available at its premises for collection by Customer. Accordingly, Customer handles all costs (including the cost of shipping, customs duties, import clearance and taxes) and risk after the Products are collected.
• On a case by case basis, DCX may offer to deliver based on DAP (Incoterms 2020) delivery term. DAP (Incoterms 2020) means DCX delivers the Products to a named place of destination but is not responsible for unloading. DCX’s responsibilities include packing, export clearance, carriage expenses (subject to 4.3 below) up to the agreed destination and Customer is responsible for all costs such as customs duties, import clearance, taxes and unloading. Each time such DAP delivery term shall be agreed and confirmed by DCX in writing. In case of DAP delivery, clause 3 hereinbelow applies accordingly.
• In case of DAP delivery, the price of the shipment shall be either of the two, as decided:
  5. included in the overall quote and/or Contract Price, however, such overall Contract Price and/or quote price is indicative and may be changed before the actual shipment of Products. In such case, the Customer shall be obliged to cover the difference between the agreed price and the adjusted (increased) price of shipment before the Products are dispatched. If the Customer refuses to cover such difference, DCX may unilaterally cancel the Contract and/or any purchase order and provide the Customer with a refund as per clause 5.2 hereinbelow;
  6. exclusive of the cost of shipment, where the shipment price shall each time be provided and quoted individually and separately. In such case, the Customer shall be obliged to pay for the shipment costs prior to the dispatch of Products. If the Customer refuses to cover the cost of shipment offered by DCX, DCX may unilaterally cancel the Contract and/or any purchase order and provide the Customer with a refund as per clause 5.2 hereinbelow.
• DCX will indicate a delivery date as accurately as possible and will use commercially reasonable efforts to deliver Products in a timely manner, however this is not subject to warranty or representation. In case where a firm Delivery date has been expressly agreed, clause 10 below applies unless agreed to the contrary.
• DCX may elect to deliver Software and related Product/license information, as relevant and if applicable, by electronic transmission or via download.
• Risk of loss of or damage to Products shall pass onto the Customer or its designee upon Delivery.

Title of ownership to Products shall pass onto the Customer upon payment of the full Contract Price (also referred to as sales price / purchase price) as specified in the Contract or agreed otherwise.

5. Prices and Taxes

• All Products are sold and all prices are quoted EXW (Incoterms 2010), unless otherwise agreed.
• For DAP (Incoterms 2020) deliveries, as provided in clauses 2 and 4.3 above, in case Customer is unable to collect the Products at an agreed date as notified by the forwarder or fails to collect from the designated place and in consequence DCX incurs additional costs, any and all such costs related to such delayed collection or failure to collect including but not limited to logistics and shipment, warehousing, insurance, costs of return to DCX and customs clearance shall be reimbursed by Customer to DCX. If repeated shipment to Customer is necessary, Customer shall incur the costs of such shipment in advance. In any case, if Customer fails to ultimately collect the Products within fifteen (15) calendar days from the date of delivery to a designated place, such failure shall mean one-sided cancellation of the Contract by Customer. If Customer chooses to cancel the Contract, without prejudice to any other provisions of the Contract to the contrary, DCX may decide to accept or reject the cancellation. If DCX accepts the cancellation, DCX will deduct any of the above mentioned costs against any refund payments due to Customer under the Contract, if applicable, and Customer shall pay the restocking fee of 20% (twenty per cent) of the purchased Products. If DCX refuses to accept cancellation, then Customer is not entitled to any refund from DCX and is obliged to reimburse DCX all costs related to return of the Products to DCX premises.

Prices will be as quoted in writing by DCX or, in the absence of a written quote, as set out on DCX website, or DCX-published list price at the time an order is submitted to DCX. Prices are exclusive of taxes (e.g. VAT),  duties, and fees (including installation, shipping, and handling, travel, etc.) unless otherwise quoted. If a withholding tax is required by law, appropriate DCX’s procedures will apply.

6. Payment Terms

• Unless otherwise agreed in the other documents comprising the Contract, the Customer shall pay the full price of the Products upon order confirmation by DCX.
• Unless otherwise agreed in the other documents comprising the Contract, payments shall be made in total against DCX’s invoice or pro-forma invoice, as relevant, within seven [7] days from the date of receipt of an invoice or pro-forma invoice, as relevant. DCX may suspend or cancel performance of open orders if Customer fails to make payments when due.
• All payments shall be made in the currency as specified in a quote and provided for on the invoice or pro-forma invoice, as relevant.
• Overdue payments shall carry an interest of the maximum percent amount permitted by law on the delayed amount.

7. Quality

DCX will continuously during manufacturing monitor the quality of its Products with the aim to assure that the Products meet the specifications.

8. Acceptance

• Unless otherwise agreed, the Products and / or Services are deemed accepted upon Delivery or provision, as relevant, remote acceptance based on presented documentation allowed
• Operation or commercial operation / use by the Customer of the Products delivered shall be deemed as unconditional acceptance of relevant Products and / or Services.

 9. Warranties

• Limited Hardware Warranty. DCX will provide Hardware free from major defects for a period of 180 (one hundred and eighty) days from the date of Delivery.
• Limited Services Warranty. DCX will provide the Services with reasonable care and skill.
• DCX does not warrant that the Software, if applicable, will operate uninterrupted or that it is free from defects or meets Customer’s requirements.
• Delivery of any spare parts relevant to the Products are subject to a separate quote and purchase by the Customer and not subject to any warranty undertakings by DCX.
• DCX makes no warranties for software, service, support or Third Party Products of third parties. Such software, service, support and products are provided “as is,” without warranties or conditions of any kind.
• All other warranties and other terms implied by law are, to the fullest extent permitted by law, excluded from the Contract. In particular, DCX’s liability for statutory warranty („rękojmia”) pursuant to the Polish Civil Code is explicitly excluded.
• In case of DCX’s breach of the warranties referred to in clauses 9.1 and 9.2 above, DCX’s sole liability, will be, at its option, to repair or correct or replace such faults causing the aforesaid breach, provided always that:
  1. Customer has used the Hardware and/ Software in accordance with the Documentation and the Contract and/or any other instructions provided by DCX in writing and that the Hardware and/or Software has not been used for any other purpose than that for which it was designed,
  2. Customer has not attempted to modify, alter or repair the Hardware and/or Software otherwise than instructed in writing by DCX or has not used components, utilities, engineered fluids or materials other than those authorized by DCX,
  3. the fault is not a result of accident or negligent or wilful acts or omissions of Customer,
  4. Customer has notified DCX in writing of the alleged fault specifying the fault within the warranty period as specified in clause 9.1 above,
  5. the Hardware and/or Software are returned, at Customer’s cost and risk and properly packed to a delivery address instructed by DCX without undue delay.
• All cost of transportation and risk of loss or damage to the Hardware incurred with respect to the repair and/or replacement of faulty Products will be borne by Customer when returned to DCX and by DCX when returned to Customer.
• DCX shall not be held liable for any defect which is due to accident, normal wear and tear, negligent use, improper handling, contamination or fouling of engineered fluids and/or Product components, operation and storage.
• DCX shall not be held liable for Product improper operation due to incorrect installation by Customer or failure of Customer to perform periodic maintenance activities and checks as advised by DCX.
• DXC shall not be liable for the expected performance, efficiency or parameters of the Products. For clarity, performance  and/or efficiency levels and/or parameters given by DCX are indicative only and dependant on particular environmental conditions and individual Customer on-site installation conditions and thus are not subject to any warranties and claims from Customer.
• The warranties set out in this clause 9 (warranties) explicitly exclude warranty and liability of DCX for any consumable items, such us, without limitation, engineered fluids, batteries, pumps’ components, gaskets or fuses.

10. Force Majeure

• DCX shall not be liable to Customer for any delay or failure to perform any of its obligations caused by Force Majeure. If such delay or failure lasts longer than 30 days, DCX may terminate, in whole or in part, the relevant Order by giving written notice to the Customer. “Force Majeure” refers to circumstances beyond DCX’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, general import/export/customs process problems affecting supplies to DCX, shortages in materials, failure of a utility service or transport network, embargo, strike, lock-out or other industrial dispute (whether involving DCX’s workforce or any other party), or default of DCX’s suppliers or subcontractors due to any of the preceding events.
• Without prejudice to the right of termination referred to in clause 10.1 above, in case of occurrence of any of the events of Force Majeure DCX may extend the Delivery time required by the Contract by a period reasonable under the circumstances. The right or relief shall apply irrespective of whether the cause of delay occurs before or after the agreed date of Delivery,
• In case of Force Majeure, DCX shall notify the Customer promptly in writing and furnish the Customer with all relevant information related thereto.
• It is to be noted and acknowledged that the spread of the COVID-19 coronavirus (SARS-CoV-2) may affect the ability of DCX to fulfil its obligations, e.g. in cases where measures are taken by the competent authorities or actions are taken by other persons on whom the performance of the Contract depends on (e.g. providers of service utilities, owners of necessary infrastructure, etc.) which can hinder or make impossible fulfilment of the obligations of DCX. In such cases, DCX shall in writing notify the Customer in the same manner as stipulated in this chapter 10 of GTC (Force Majeure) and other provisions of this chapter 10 of GTC (Force Majeure) shall apply.  Also, this paragraph shall apply in the event when due to the temporary cessation of the spread of the COVID-19 coronavirus (SARS-CoV-2), the abovementioned measures by the competent authorities are revoked, or the actions by the other parties are terminated, and then are reinstated or restarted, if the spread of coronavirus COVID-19 (SARS-CoV-2) reappears.

11. Liquidated Damages

• Should, due to circumstances for which DCX is responsible, the Products and/or Services or part thereof, not be delivered where a firm time of Delivery has been expressly agreed in the Contract, or within any extended or postponed period, as the case may be, the Customer will have the right to claim liquidated damages.
• The liquidated damages shall, for each full week of delay, amount to a sum equivalent to 0.2% (point two per cent) of the price properly attributable to the delayed Products or Services or delayed part thereof, as relevant, up to the maximum of 5% (five per cent) of the said price. The aforesaid liquidated damages shall be sole and exclusive compensation for any delay in delivering the Products and Services or any part thereof.

 12. Confidentiality, Non-disclosure and Proprietary rights

• “Confidential Information” means respectively DCX’s or Customer’s, proprietary information, trade secrets and intellectual property rights, such as, without limitations, any information related to the Products or Services, technical, financial and commercial, designs, projects, plans and technical specifications of the Products and data relating to DCX and in general information that is not generally known to the public, whether or not it is described as confidential or which, due to the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential. Confidential Information does not include information that is: (a) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (c) rightfully furnished to the receiver by a third party without confidentiality restriction; or (d) independently developed by the receiver or its Affiliates without reference to the discloser’s Confidential Information.
• Each party shall ensure that, where it or one of its Affiliates is the receiver of Confidential Information hereunder, the receiver shall (a) use Confidential Information of the discloser only for the purposes of exercising rights or performing obligations in connection with these GTC/Contract or any Order hereunder; and (b) protect from disclosure to any third parties any Confidential Information disclosed by the discloser.
• Notwithstanding the foregoing, either party and its Affiliates may disclose Confidential Information (1) to an Affiliate, or to a subcontractor used by Supplier to provide Services under the Contract, as long as the Affiliate or subcontractor has a need-to-know and complies with the foregoing; (2) to either party’s directors, officers, employees, and professional advisors and those of its Affiliates, and (3) if required by law or regulatory authorities provided the receiver has given the discloser prompt notice.
• Customer shall not forward or disclose any information contained in DCX’s quotation or the Contract to any third parties without the prior written consent of DCX.
• Nothing contained in this clause 12 shall be construed as granting or conferring upon the Customer, whether explicit or implicit, any rights and licenses to any intellectual property rights.
• No Party is allowed to perform any reverse engineering. Party shall not reverse engineer or cause a third party to analyse, decompile or reverse engineer any of Confidential Information for any purpose, without written consent of disclosing Party.
• The Parties obligations under this clause shall survive the termination of the Contract.

13. License

• For the purpose of this clause 13 (License), the expressions Software and Documentation shall be considered to include also Third Party Products (software and/or documentation).
• Subject to the terms and conditions of this clause 13, Customer is granted a non-exclusive, non-transferable, revocable license to use the Software (in object code form) and Documentation specified in the Contract, for Customer’s own operation, use and maintenance in accordance with these GTC for the period specified in the Contract or otherwise by DCX.
• The price for granting the license to use the Software and/or Documentation is included in the price for the sale of Software.
• If Contracts include sale by DCX of Third Party Products comprising software and documentation, Customer accepts and agrees to be bound by such third party’s license terms related to such Third Party software and documentation (Third Party Products).
• Notwithstanding anything in these GTC to the contrary, Customer is not vested with any ownership rights or title to the Software or Documentation, or Third Party Products, and all such rights and title shall always remain with DCX or its suppliers or subcontractors, as relevant.
• Granting by DCX to Customer the license to use the Software and Documentation as per this clause 13 is subject to the conditions listed below. In particular, Customer shall:
  1. not make Software or Documentation or any parts thereof available to any third party,
  2. not distribute, sub-license, assign or transfer Software or Documentation or any parts thereof to any third party,
  3. not to make copies of Software or Documentation or any parts thereof except for one copy for archival purposes,
  4. not modify, decompile, translate or make any alterations to the Software or Documentation or any parts thereof,
  5. not use Software or Documentation or any parts thereof for any other purpose than as permitted in this clause 13,
  6. not use or transfer Software or Documentation or any parts thereof outside the Territory as specified in the Contract.
• Within the scope determined in these GTC, the license granted to Customer covers the use of Software and Documentation in the following fields of use:
  1. reproduction, using any technique, to the extent it is necessary to reproduce it for loading, displaying, operating and storing,
  2. recording for archiving purposes, using any technique, provided that copyright information and/or labels are transferred to such copies of the Software and/or Documentation,
  3. replaying, displaying,
  4. saving on a disc.
• DCX has the right to terminate the license with immediate effect in case of breach by Customer of the provisions of this clause 13.
• The obligations of the Customer under this clause 13 shall survive termination or expiration of the Contract for any reason.

14. Indemnity

• DCX shall:
  • at its own expense, defend Customer against any third party claim that a Product as provided by DCX infringes a patent or copyright enforceable in a country that is a signatory to the Berne Convention; and
  • pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction to the extent that such are the result of the third party claim, or pay the amounts stated in a written settlement negotiated and approved by DCX.
• The foregoing obligations are subject to the following: Customer
• • notifies DCX promptly in writing of such claim;
  • grants DCX sole control over the defence and settlement thereof;
  • reasonably cooperates in response to a DCX request for assistance and information; and
  • is not in material breach of these GTC or the Contract
• Should any such Product become, or in DCX’s opinion be likely to become, the subject of such a claim as referred to above, DCX may, at its option and expense,
  1. procure the right to make continued use thereof;
  2. replace or modify such so that it becomes non-infringing; or
  3. if, in DCX’s opinion, neither of the foregoing are reasonably available, DCX shall notify Customer to return the Product and, upon receipt thereof, DCX shall refund the price paid by Customer, less straight-line depreciation based on a five (5) year useful life for Products. DCX shall have no obligation or liability to the extent that the alleged infringement arises out of or relates to:

1. 1. 1. combination, operation or use of a Product as provided by DCX to Customer with any products, services, items, or technology that (i) were not provided by DCX to Customer; or
      2. Products were provided by DCX to Customer but were obtained by DCX from a third party, except if provided by DCX to Customer as an embedded component of a DCX Product;
      3. use for a purpose or in a manner for which the Product was not designed or use after DCX notifies you to cease such use due to a possible or pending claim of infringement;
      4. any modification made by any person other than DCX or its authorized representatives;
      5. any modifications to a Product made by DCX pursuant to instructions, designs, specifications or any other information provided to DCX by or on behalf of Customer;
      6. use of any version of a Product when an upgrade or newer iteration of the Product made available by DCX would have avoided the infringement;
      7. services provided by Customer and/or any revenue Customer derives therefrom; or
      8. any data or information which Customer or a third party records on or utilizes in connection with Products.
         • This section states Customer’s sole and exclusive remedy and DCX’s entire liability for infringement claims pertaining to Products. In particular. DCX’s liability for statutory warranty („rękojmia”) pursuant to the Civil Code as well as copyright law is explicitly excluded.

15. Termination

• DCX may terminate the Contract on written notice with immediate effect if the Customer fails to meet any material obligation after being notified in writing of the details.
• Either party may terminate the Contract on written notice with immediate effect if :
  1. either party becomes insolvent, unable to pay debts when due, files for or is subject to filing for bankruptcy or receivership or asset assignment,
  2. the other Party is in breach of clause 12 (Confidentiality, Non-Disclosure And Proprietary Rights) or clause 13 (License).
• Any terms in the Contract which by their nature extend beyond termination or expiration of the Contract will remain in effect until fulfilled and will apply to both parties’ respective successors and permitted assigns.
• In the event the Customer is entitled by statutory law to withdraw from the Contract or Order, the Customer may do so with respect to parts not performed yet, by submitting a written statement to DCX. The scope of the Contract including design and delivery of any Products and related Services are Customer-specific and are custom-made by DCX based on the specific requirements of and for the Customer. Therefore, withdrawal from and subsequent termination of the Contract by the Customer at any stage prior to its full execution will cause harm to DCX and loss of anticipated profits. In any case of such termination, Customer shall pay to DCX damages in the form of a contractual penalty for such Contract termination amounting to 100% of the price of the Contract stage(s) completed prior to termination. DCX shall also have the right to claim additional damages exceeding the amount of the above-mentioned contractual penalty up to the full amount of the incurred damage.
• In addition to the above, should a cause of Force Majeure continue longer than 6 (six) months, either Party may terminate the Contract upon 30 (thirty) days’ written notice.
• In case of Contract termination due to Force Majeure pursuant to clause 15.5 or due to circumstances set out in clause 1, DCX shall be entitled to payment by Customer for the Products delivered or Services rendered by DCX to Customer at the time of Contract termination.
• For clarity, termination for convenience of the Contract shall only be permitted if expressly agreed between the Parties in writing. All sales are final, and the Customer is not entitled to receive a refund of any payments in case of Customer’s one-sided cancellation of Contract.

16. Liability

• In no event shall DCX be liable to the Customer under the Contract for loss of production, loss of use, loss of business, loss of data or revenue or loss of profit or for any other indirect or consequential damages, whether or not the possibility of such damages could have reasonably been foreseen.
• The above limitation of liability shall remain in full force and effect regardless of whether the Customer’s remedies hereunder are determined to have failed their essential purpose.
• No action, regardless of form, arising out of any claimed breach of the Contract or obligations under the Contract may be brought by Customer later than 12 (twelve) months after the cause of action has accrued.
• Except for liquidated damages specified in clause 11 and damages arising out of breach of the obligations under clauses 13 (License) and 12 (Confidentiality, Non-Disclosure And Proprietary Rights), to the maximum extent allowed by the law, DCX shall not be liable to Customer under the Contract for damages exceeding ten per cent (10%) of the price of relevant order under the Contract. When calculating the said percentage figure, any taxes, fees or levies, if any, forming part of the Contract Price, shall be excluded.
• Customer shall be liable to DCX under the Contract for loss of business, loss of data, know-how or revenue, loss of profit or for any other indirect or consequential damages in particular resulting from or connected with withdrawal from the Contract and its subsequent termination.

17. Assignment

• The Contract may not be assigned in whole or in part by Customer without prior written approval of DCX.
• DCX will be authorized to assign or sell receivables under the Contract to a third party and disclose to such party Proprietary Information as well as information regarding financial situation of the Customer. Such disclosure shall not constitute breach of the provisions of GTC.
• Customer shall not be entitled to set off any of its claims against DCX towards any DCX receivables.

18. Waste Treatment

• DCX acknowledges that sound environmental waste treatment of retired / decommissioned Products is important. Hence, if so required by applicable law due to the type of products delivered:
  1. Customer will decommission and deliver to a designated by DCX place for retired/decommissioned Products („Pick-up Place”), and
  2. DCX will collect at the Pick-up place, and arrange for handling in accordance with the EU Directive 2012/19/EC or any corresponding or similar applicable legislation / public regulation („Recycling Legislation”)

all DCX Hardware which was previously sold to Customer and which is covered by any recycling Legislation.

19. Severability

• Failure to enforce a provision of these GTC will not constitute a waiver of that or any other provision of these GTC. If any part of the GTC or an Order is held unenforceable, the validity of the remaining provisions shall not be affected.

20. Governing Law And Dispute Resolutions

• The Contract shall be governed by and construes in accordance with the laws of Poland. For clarity, the U.N. Convention on Contracts for the International Sale of Goods does not apply.

Any disputes arising in connection with the Contract, quotation, proposal or any such offering shall be settled by the competent courts in Poland.