1. INTRODUCTION

The following general terms and conditions of sale („GTC”) apply to the sale of or by DCX Polska Sp. z o.o. or DCX INC., 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”). These GTC apply exclusively. Any conflicting or additional terms of the Customer are hereby expressly rejected and shall not apply unless agreed in writing by DCX.

2. DEFINITIONS

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

“Acceptance” “means acceptance as defined in clause 8.

“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 an agreement for the supply of Products or provision of Services between the Parties, concluded in writing and duly executed by both Parties, including these GTC incorporated by reference. The Contract shall, in particular, arise from Customer’s order referring to DCX’s quotation, offer or proposal, together with DCX’s explicit written acceptance of such order  issued by authorized representatives of DCX. Any other form of contract formation (including by conduct, electronic communication, or implied acceptance) shall be binding only if expressly agreed in writing by DCX.  The Contract may be amended only by a written Change Order signed by both Parties.

“Change Order” means a written agreement signed by both Parties specifying any modification to the scope of Products or Services, specifications, schedule, or Contract Price, together with all resulting adjustments to costs, timelines, and responsibilities, which shall be binding only upon such written agreement.

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

“DCX” means DCX Polska Sp. z o.o. or DCX INC., as applicable.

“Defect” means a material failure of the Product to conform to the agreed specifications under normal and proper use strictly in accordance with Documentation.

„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.

“General Terms and Conditions of Sale” or „GTC” means these General Terms and Conditions of Sale.“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 or firmware, if applicable.

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

“Third Party Product” or “3PP” 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. Contract may be amended exclusively by Change Order to be effective. DCX reserves the right to accept or reject any order at its sole discretion without liability. DCX reserves the right to make changes to Product design, materials, specifications or manufacturing methods at any time, provided such changes do not materially reduce functionality.
  
  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:
  - 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;
  - 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.
• Delivery dates are estimates only and shall not be binding unless expressly agreed in writing as firm delivery dates. Delay in delivery shall not entitle Customer to cancel the Contract, refuse delivery, or claim damages, except as expressly provided in clause 11. DCX shall be entitled to make partial deliveries and invoice separately.
• 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. Upon delivery collection, Customer shall inspect the delivery for completeness and any possible damages during transportation and prepare a relevant protocol including any possible deficiencies. Such documented protocol should be presented to DCX within 3 (three) days following the date of delivery, otherwise any claims related to an incomplete or damaged delivery shall not be accepted and DCX shall not be liable for the foregoing. If Customer fails to take delivery, DCX may store the Products at Customer’s risk and expense and such Products shall be deemed delivered.
• 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.
• DCX reserves the right to adjust prices prior to delivery in case of increase in costs beyond DCX’s reasonable control, including but not limited to raw materials, energy, transportation, exchange rates, or supplier pricing.

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 without liability 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.
• DCX may require advance payment, milestone payments or financial security at its discretion.
• DCX may suspend performance, deliveries, warranties and support obligations in case of overdue payments without liability.
• If the Customer fails to pay any amount due under this Contract on the due date, DCX shall be entitled, without the need for prior notice or demand, to statutory interest for delay in commercial transactions, increased by the statutory margin applicable to commercial transactions as published from time to time; such interest shall accrue on a daily basis from the day following the due date until the date of actual payment until paid in full, and it being agreed that the above entitlements apply automatically upon delay and do not exclude DCX’s right to claim further damages under general provisions of Polish law. Notwithstanding anything in the GTC or Contract to the contrary, in the event the Customer fails to make any payment under the Contract when due, the Customer shall reimburse DCX for all justified costs of collection, including proven legal fees, debt collection agency fees and charges as applicable. If, despite valid requests for payment, the Customer fails to make the payment for overdue liabilities within 20 days from the final due date, DCX has the right, at its discretion: (i) to take legal action to claim outstanding payments, (ii) forward all outstanding payments to a debt collection agency, or (iii) to terminate the Contract and claim applicable proven indemnity upon such termination, or (iv) undertake the mentioned options simultaneously.
• Customer acknowledges that DCX is bound by the provisions of the trade insurance agreement with Coface, which requires DCX to forward any overdue debt exceeding 30 days to debt collection.

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

• Products and/or Services shall be deemed accepted upon the earliest of:
  - Delivery
  - 7 days from Delivery without written rejection specifying material Defects;
  - Use, operation, resale or integration of the Products by Customer.

9. WARRANTIES

• Limited Hardware Warranty. DCX will, for a period of  180 (one hundred and eighty) days from the date of (i) Delivery for a delivery-only undertaking, and (ii) upon acceptance for deliveries including commissioning, at its option and without undue delay, repair or replace without charge any part of the delivered Hardware or spare parts which do not operate.  Consumable parts are excluded from said warranty. Repaired or replaced Hardware or spare parts shall be warrantied for the remainder of the original warranty period. Customer shall bear all transportation costs and risk of loss of defective deliverables when returned to DCX for repair or replacement during the warranty period. DCX shall bear the transportation costs and risk of loss of repaired or replaced deliveries to Customer during the warranty period. Customer shall replace the repaired or replaced deliverable on its own with necessary remote assistance of DCX.
• 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.
• DCX does not warrant system-level performance, interoperability, or compatibility with Customer’s infrastructure, third-party equipment, or environmental conditions.
• Performance parameters including cooling efficiency, capacity, or operational metrics are indicative only and dependent on Customer-specific environmental and operating conditions.
  
• 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:
  - 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,
  - 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,
  - the fault is not a result of accident or negligent or wilful acts or omissions of Customer,
  - Customer has notified DCX in writing of the alleged fault specifying the fault within the warranty period as specified in clause 9.1 above,
  - 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.

For the avoidance of doubt, DCX shall have no liability for Defects or malfunctioning arising from installation, commissioning, operation or maintenance not performed strictly in accordance with Documentation or by authorized personnel.

• 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 or malfunctioning 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.
• DCX 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, supply chain disruptions, semiconductor shortages, energy shortages, logistics constraints, failure of suppliers, 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. Further, in case of termination due to prolonged Force Majeure, the Seller shall be entitled to payment for all Products manufactured, Services performed, and costs reasonably incurred up to the date of termination, including reasonable profit on work completed.
• In case of the occurrence of an event of Force Majeure, DCX shall notify the Customer promptly in writing and furnish the Customer with all relevant information related thereto.

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 0.1% (point one 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 remedy for any delay in delivering the Products and Services or any part thereof.
• The Customer may not bring any claim for liquidated damages, damages or any other financial remedy against DCX and DCX shall be granted an extension of time in respect of a delay or failure by DCX to meet any of the agreed deadlines (if applicable) or in respect of any failure by DCX to meet any of its obligations under a Purchase Order or under these GTC if caused (i) due to reasons attributable to the Customer, its subcontractors (other than DCX´s sub-contractors under the Purchase Order), agents, personnel or any other third party under Customer´s control or direction or (ii) due to reasons outside DCX´s control including if caused by a Force Majeure event or due to the Public Administration or any third party other than an DCX subcontractor;  or (iii) due to any failed/inaccurate contracted assumption or prerequisite; or (iv)  due to unavailability of required export or import authorization from responsible export control authority.

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, work 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 this Agreement, 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. All intellectual property rights in Products, designs, Documentation, work products and know-how remain exclusively with DCX.
• 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) and firmware.
• 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:
  - not make Software or Documentation or any parts thereof available to any third party,
  - not distribute, sub-license, assign or transfer Software or Documentation or any parts thereof to any third party,
  - not to make copies of Software or Documentation or any parts thereof except for one copy for archival purposes,
  - not modify, decompile, translate or make any alterations to the Software or Documentation or any parts thereof,
  - not use Software or Documentation or any parts thereof for any other purpose than as permitted in this clause 13,
  - 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:
  - reproduction, using any technique, to the extent it is necessary to reproduce it for loading, displaying, operating and storing,
  - 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,
  - replaying, displaying,
  - 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.
• DCX reserves the right to audit Customer’s compliance with license terms upon reasonable notice.

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;
• 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. 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 or in case of change of control of the Customer. Control for this purpose means, having, directly or indirectly, the control or influence of the composition of the board or decision-making forums of the Customer, e.g. when owning more than 50% of the shares or voting rights in the capital of the Customer.
• Either party may terminate the Contract on written notice with immediate effect if :
  - Either and/or the other Party becomes insolvent, unable to pay debts when due, files for or is subject to filing for bankruptcy or receivership or asset assignment,
  - the other Party is in breach of clause 12 (Confidentiality, Non-Disclosure And Proprietary Rights) or clause 13 (License).
• Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties’ respective successors and permitted assigns.
• To the extent permitted by applicable law, any statutory right of withdrawal by the Customer shall be limited strictly to the affected and unperformed part of the Contract only. Customer shall not be entitled to withdraw from the entire Contract unless the unperformed part is essential to the overall purpose of the Contract and such purpose cannot be reasonably achieved. In any case of withdrawal:
  (a) DCX shall be entitled to retain all payments corresponding to Products delivered and Services performed;
  (b) Customer shall pay for all work performed, costs incurred, and commitments made by DCX;
  (c) DCX shall not be liable for any indirect or consequential damages arising from such withdrawal.
• 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. LIMITATION OF 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, loss of contracts or business interruption, or for any other indirect or consequential damages or indirect loss, whether or not the possibility of such damages could have reasonably been foreseen. In particular, to the maximum extent permitted by law, DCX shall not be liable for system failure or cooling failure impacts, data centre downtimes, overheating consequences, loss of data or IT workloads, loss of energy efficiency or PUE metrics.
• 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.
• To the maximum extent permitted by applicable law, the total aggregate liability of DCX arising out of or in connection with the Contract, whether in contract, tort (including negligence), strict liability, indemnity or otherwise, shall in no event exceed ten per cent (10%) of the total Contract Price actually paid by the Customer under the relevant Contract. This limitation shall apply in the aggregate to all claims, irrespective of their nature or legal basis, including but not limited to claims for liquidated damages, indemnification, breach of confidentiality, breach of license, or otherwise. For the purpose of calculating the above cap, any taxes, duties, levies or similar charges included in the Contract Price shall be excluded. The foregoing limitation shall apply notwithstanding any failure of essential purpose of any limited remedy and shall survive termination or expiration of the Contract

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.
• DCX may assign the Contract to any Affiliate without Customer Consent.
• Customer shall not be entitled to set off any of its claims against DCX towards any DCX receivables.

18. WASTE MANAGEMENT, DECOMMISSIONING AND RECYCLING

• DCX shall comply with applicable waste management laws and regulations in force within the European Union and the Territory, including, where applicable, Directive 2012/19/EU on waste electrical and electronic equipment (WEEE), Regulation (EU) 2023/1542 concerning batteries and waste batteries, and all applicable national implementing legislation.
  
• Unless otherwise expressly agreed in writing, DCX supplies Products as professional B2B equipment and shall not be responsible for the collection, dismantling, decommissioning, transportation or disposal of Products after their end-of-life. Customer shall be solely responsible, at its own cost and risk, for:
  (a) safe decommissioning and disconnection of the Products;
  (b) removal from site, including any integration with other systems;
  (c) proper handling, treatment and disposal of all components, including Hardware, Software media and any associated materials or substances.
  

• Customer acknowledges that Products may contain engineered fluids, coolants, additives and other substances which may require specific handling and disposal under applicable environmental laws, including but not limited to the Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) and Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures (CLP). Customer shall be solely responsible for the safe drainage, handling, transport and disposal of such substances in accordance with applicable laws and industry standards. DCX shall have no liability for any contamination, leakage, or environmental impact arising from the handling or disposal of such substances after Delivery.
• To the extent that the Products form part of a large-scale fixed installation or otherwise qualify for exemption under applicable waste legislation, including the Directive 2012/19/EU on waste electrical and electronic equipment (WEEE), the Parties agree that such exemptions shall apply to the fullest extent permitted by law.
• To the maximum extent permitted by law, DCX shall not be liable for any costs, damages or liabilities arising out of or in connection with:
  (a) decommissioning, dismantling or removal of the Products;
  (b) disposal or recycling of Products or any substances contained therein;
  (c) environmental damage, contamination or regulatory non-compliance occurring after Delivery.
• To the extent that the Products form part of a large-scale fixed installation or otherwise qualify for exemption under applicable waste legislation, including the Waste Electrical and Electronic Equipment Directive, the Parties agree that such exemptions shall apply to the fullest extent permitted by law.

19. EXPORT AND IMPORT

• Customer is, hereby, informed of that sale and import to the Territory of Hardware and Software may require an export- and/or import license from any government authority.
  
• Customer shall be responsible for obtaining and maintaining the import authorization(s) which may be required for importation of the Hardware, licenses for Software, Software media and Documentation. In order to obtain such import authorizations, DCX shall provide upon Customer’s request the gross and net weight, country of origin, the name of the Hardware manufacturer as well as any other necessary information as relevant authorities might reasonably ask for. If there is any delay in the procuring of or failure to obtain and/or maintain any import authorization which may be required for the Hardware, licenses for Software, Software media and Documentation, DCX shall be entitled to postpone accordingly the deliveries of Hardware and/or Software by a period equivalent to the delay period caused by the failure or delay incurred in obtaining and/or maintaining the import authorization.
  
• DCX shall be responsible for obtaining all necessary export authorizations.
  
• Customer shall submit, upon DCX’s request, an end-user statement within the time limit required by DCX and in the format advised by DCX in writing in advance. If there is any delay in delivering the end-user statement, DCX is entitled to postpone accordingly the respective delivery(ies) by a period equivalent to the delay period caused by the failure or delay of Customer in providing the end-user statement.
  
• Customer shall comply with all applicable export control laws, sanction laws, rules and regulations.
  
• DCX shall not be required to be directly or indirectly involved in the export, re-export, transfer, use of items or services that is prohibited by applicable export control laws and sanctions.
• Customer is prohibited to re-export or transfer any Hardware, Software or technology purchased from DCX without the prior written consent of DCX. In particular, Customer warrants not to sell, export or re-export any goods supplied under or in connection with this GTC and/or Contract that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014 and/or Article 8g of Council Regulation (EU) No 765/2006, directly or indirectly, to the Russian Federation or Belarus, or for use in the Russian Federation or Belarus.
  
• Any breach of the above clause shall constitute a material breach of the Contract and DCX reserves the right to withhold any relevant Restricted Goods (including hardware and software products, technology and/or services), and to terminate the Contract / purchase order or terminate any relevant license or other rights granted to the Customer in relation to such Restricted Goods.
  
• The Customer shall promptly notify DCX if becoming aware that it is not in compliance with the above prohibition.
  
• DCX shall have no liability for delays or non-performance resulting from export control restrictions.
  

20. 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.

21. 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.