Terms and conditions

GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES

1.     GENERAL

1. These General Terms and Conditions for the Sale of Goods and Services (“General Terms”) set out the terms and conditions of sale in the business transactions with the customers of Scanway from the space industry (“Customers”). In particular, General Terms define the principles of manufacture and sale of the Goods and provision of Services by Scanway, and the rights and obligations of the Parties.
2. These General Terms shall apply in particular to all sale and purchase agreements, contracts for the manufacture and sale of Goods, and Purchase Orders concluded with the Customers. Provisions hereof shall be deemed included by reference to any Purchase Order issued to Scanway and issuance of such Purchase Order shall be deemed acceptance hereof.
3. These General Terms shall apply exclusively. Any conditions of sale, purchase or other general terms and conditions issued by the Customer shall not apply unless specifically accepted by Scanway.

2.           OBLIGATIONS OF SCANWAY

1. Upon execution of the Purchase Order, Scanway shall deliver the Goods and/or provide Services specified in the relevant Purchase Order, in accordance with the terms and conditions set forth herein and in the Purchase Order.
2. Scanway shall perform the Services, if ordered, with utmost diligence, in accordance with the applicable regulations and recognized applicable standards, and with the lowest possible level of interference for Customer’s organization.
3. If, for the purposes of performance of the Purchase Order, it is necessary for Scanway to obtain access to the Customer’s premises, Scanway shall procure that Scanway and any persons that it uses while performing the contractual obligations (the “Personnel”) will strictly comply with all the applicable policies on the Customer’s premises and any Customer’s instructions in this regard.
4. Scanway declares that its Personnel have appropriate qualifications, experience and skills necessary to properly perform the obligations arising from the Agreement.
5. If Scanway is required to obtain any permits or to comply with any other requirements in order to conduct the activities as defined in this Agreement, Scanway declares that it has all the permits and complies with all requirements and undertakes to maintain the full validity of such permits and all requirements for the entire duration of the Agreement.

3.           RENUMERATION

1. Customer agrees to pay Scanway with the agreed Price for the supplied Goods and Service Fee for the Services performed pursuant to this Agreement, in the amounts set out in the applicable Purchase Order (“Renumeration”).
2. In addition to Service Fee, the Customer shall reimburse direct expenses incurred by Scanway in the provision of Services, including, but not limited to, travel costs, accommodation, etc.
3. In each Purchase Order the Parties may decide to fix the Price for certain Goods and/or the Service Fee for certain Services for a period set out in such Purchase Order or make any other price adjustment arrangements.
4. Renumeration does not include any federal, state or local taxes, import duties or any other charges that may be applicable to the Products or Services or its sale to the Customer. Scanway shall not be responsible for any taxes on the sale of the Products or Services. Pricing per this Agreement represents the net cash amount to be received by Scanway. Accordingly, any fees indicated herein shall be exclusive of Value Added Tax (“VAT”) if applicable, or other sales tax, or other governmental charges of such kind at the rate prescribed by law which shall be specified in the applicable invoice. If Scanway has an obligation to collect, remit or have withheld any such taxes, duties or fees, an amount shall be added to Customer invoice and paid by Customer such that the net amount of cash received by Scanway equals the pricing per this Agreement.
5. If Scanway is required to pay any part of such tax, duty or charge as set out in Clause 3.4, Scanway shall provide Customer with evidence that such tax, duty or charge has been paid, and Customer shall reimburse Scanway for such payment. Each Party shall use commercially reasonable efforts to (i) minimize the amount of any such tax, duty or charge imposed on the sale of Products or Services hereunder, including by availing itself of any available exemptions from or reductions to any such taxes, duties or charges, and (ii) cooperate with the other Party in providing any information or documentation that may be reasonably necessary to minimize such taxes, duties or charges or obtain such exemptions or reductions.
6. The Parties shall reasonably cooperate to determine whether any tax withholding applies to any amounts paid under this Agreement and, if so, shall further reasonably cooperate in (i) minimizing the amount of any such withholding taxes, including by availing itself of any available exemptions from or reductions to any such withholding taxes, (ii) providing any information or documentation that may be reasonably necessary to minimize such withholding taxes or obtain such exemptions (including, without limitation, pursuant to any applicable double taxation or similar treaty) or (iii) receiving a refund of such withholding taxes or claiming a taxes, duties or charges tax credit therefor. If any such withholding is required by applicable law, the paying Party shall properly and timely withhold and remit such taxes to the applicable taxing authority and use reasonable efforts to provide the other Party with a copy of any receipt (where it is common practice for the applicable taxing authority to provide such a receipt) or other documentation confirming such payment, and such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the receiving Party. The paying Party shall not be required to “gross up” any amounts invoiced to the paying Party to account for, or otherwise compensate the receiving Party for, any taxes that are required to be withheld under applicable law.
7. Where a Party is required by this Agreement to reimburse or indemnify the other Party for any cost or expense, the reimbursing or indemnifying Party shall reimburse or indemnify the other Party for the full amount of the cost or expense, inclusive of any amounts in respect of VAT imposed on that amount to the extent properly reflected on a valid invoice, except to the extent that the reimbursed or indemnified Party reasonably determines that it for VAT purposes, is entitled to credit for or repayment of that VAT from any relevant taxing authority.

4.       INVOICING AND PAYMENTS

1. Scanway shall submit invoices for the Renumeration to Customer as set out in the Purchase Order, in each case not later than upon Delivery of Goods or completion of the Services, unless agreed otherwise in the Purchase Order. All invoices for Ordered Products will be in in such currency as indicated in the Purchase Order and all undisputed payments hereunder shall be in full and be made without any withholding, offset or any other deductions.
2. Unless otherwise provided in Purchase Order, Customer shall pay all amounts due by transfer to the bank account indicated on the issued invoice, in the currency specified in the applicable Purchase Order within fourteen (14) calendar days from the date of delivery of the invoice to Customer. Payment by Customer of any amount reflected in any invoice shall not result in a waiver of any of Customer’s rights under this Agreement.
3. If any payment required to be made by the Customer under this Agreement is not made when such payment is due, without prejudice to other rights of Scanway herein or otherwise:
   1. interest shall accrue on such past due amount until the payment is actually made at a rate equal to the lesser of (i) 10 % per annum, or (ii) the maximum rate permitted by applicable law; and
   2. Scanway may suspend all future Deliveries, if any, or performance of any Services until the outstanding amount has been received;
   3. Scanway may terminate the Purchase Order if any payment due from Customer is 20 (twenty) Business Days or more past due.

5.       PURCHASE ORDER

1. Scanway shall deliver the Goods to the Customer and/or provide the Services pursuant to the Purchase Order concluded by the Parties.
2. The Purchase Order shall:
   1. be made in writing or by e-mail (via e-mail addresses indicated in the Purchase Order);
   2. specify the Goods and/or the Services ordered by the Customer (the “Ordered Products”), in particular include the Specification;
   3. specify the Price of the Ordered Products calculated in accordance with the offer provided to Customer by Scanway;
   4. set the requested date on which the Customer requires Ordered Products to be delivered or performed. Actual Delivery Date or start date of the Services shall be set in accordance with Clause 7.2.
3. Scanway, at its sole discretion, may reject such Purchase Order issued by the Customer by notice to Customer given in writing or by e-mail. Scanway shall be deemed to have rejected Customer’s Purchase Order for the Ordered Products in the event it either:
   1. indicates its rejection of Customer’s Purchase Order in writing or by e-mail, or
   2. does not indicate its acceptance of a Purchase Order within ten (10) Business Days of receipt.
4. Scanway may accept the Purchase Order with amendments. After acceptance of the Purchase Order, the Parties shall conclude the final version of the Purchase Order in writing or by e-mail, which shall be executed by the authorised representatives of the Parties. For avoidance of doubt, binding conditions of Purchase Order shall be such as set out in the final version of the Purchase Order concluded by the Parties. In the event that the Customer does not meet its obligations Scanway shall have the right to adapt Delivery Date or start date of the Services to the respective processing and production schedules and to postpone Delivery of the Goods or the performance of Services accordingly.
5. Purchase Orders, once concluded by the Parties, may be amended only by mutual written agreement of the Parties.

6.     Performance of the Agreement. Title and passing of risk

1. Goods and Services will be delivered at the time agreed upon by the Parties during Customer’s Business Hours, unless otherwise specified in Purchase Order, and at the location specified by the Customer in the Purchase Order.
2. In case of Goods Delivery, the title in the Goods and the risk of accidental loss thereof or damage thereto shall pass to the Customer on the Delivery Date. In case of the Delivery of Goods together with the provision of Services such as testing, implementation, or integration services preceding the use of Goods by the Customer, the title in the Goods and the risk of the accidental loss of or damage to the Goods shall pass to the Customer on the date of actual completion of such Services.

7.    DELIVERY OF GOODS

1. Unless otherwise set forth in the applicable Purchase Order, Scanway shall deliver Goods to the Customer at the applicable Delivery Point specified in the Purchase Order (“Delivery”).
2. Delivery shall occur at Delivery Point by the date indicated in the Purchase Order (“Delivery Date”). Customer shall collect the Ordered Products upon Delivery. Delivery Date shall be deemed met if the Ordered Products are ready for dispatch and cannot be sent on schedule for reasons not attributable to Scanway.
3. Where Scanway is delayed in the delivery of Goods for more than 8 (eight) weeks following the agreed Delivery Date, for any reason other than an Event of Force Majeure or reasons attributable to Customer, then Customer may at its discretion:
   1.  accept the delay in the Delivery, or
   2.  cancel the Purchase Order at no cost to the Customer.

8.           scope and conduct of services

1. Upon conclusion of the Purchase Order for the Services, subject to terms and conditions of this Agreement, Scanway shall provide Services to the Customer.
2. Services hereunder shall be performed (and accepted) in Milestones as set out in the Project Schedule. However, terms and dates specified therein may be changed upon Parties’ mutual consent pursuant to Clause 8.9, which shall not constitute an amendment to this Agreement.
3. Services will be performed at the time agreed upon by the Parties, during Customer’s Business Hours unless otherwise specified in Purchase Order, remotely or at the location specified by the Customer in the Purchase Order.
4. The Parties will use commercially reasonable efforts to cooperate with and assist each other as may be necessary or desirable from time to time to implement the terms of this Agreement, and shall execute such other and further documents and take such other and further actions as may be necessary or desirable to achieve the purpose of this Agreement.
5. Parties shall provide each other with up-to-date information on threats, difficulties or obstacles which may have impact on the quality, term and scope of Services. Each Party shall ensure that its Personnel provide their services indicated in this Agreement an effective and timely manner.
6. The Customer shall, at Customer’s own cost, provide and make available all documents, information and adequate infrastructure specified in the Project Schedule in such time as set out in Project Schedule, including but not limited to:
   1. all documents and/or information necessary for the performance of Services, including data in such format as set out in the Project Schedule;
   2. qualified Personnel.
7. Scanway shall not be liable hereunder if Customer is in breach of his duty to cooperate. Moreover, Scanway may suspend performance of Services hereunder if the Customer is in breach of Clause 8.6.
8. Each Party shall procure that all information disclosed to the other Party in the course of the Services are accurate, complete and made available in due time.
9. The schedule  for the Services  shall  initially  be  governed  by  the  Project Schedule  attached  hereto  as  Schedule 2. Project Schedule may be subject to review and amended from time to time upon mutual consent of the Parties. Scanway may also unilaterally extend any deadline set out in the Project Schedule if the Customer is in breach of its obligations hereunder. Any aforementioned changes to Project Schedule do not require amendment hereto.
10. Whenever the access to Customer’s premises or infrastructure is required hereunder, Scanway’s Personnel or Subcontractors may be subject to additional requirements under Customer’s internal procedures (which are attached to the Agreement or will be provided by Customer to Scanway well in advance) or provisions of law. In such event, Customer shall notify Scanway on such requirements prior to commencement of Services, as well as on all measures required to comply therewith. Scanway shall observe only such requirements as specifically set out in the latest received version of any such internal regulation. Customer shall provide all assistance that may be reasonably required to fulfill such obligations.

9.           subcontractors

1. Scanway may hire or engage one or more Subcontractors to perform all or any part of the Services under this Agreement, provided that Scanway shall in all cases remain primarily responsible for any actions of such Subcontractors.
2. Scanway shall procure that prior to each Subcontractors’ engagement for purpose hereof, such subcontractor undertakes to protect and use confidential information which on conditions not less stringent than those set forth in this Agreement.

10.         DEFECTS

1. The delivered Goods shall be inspected immediately upon Delivery to the Customer for damage, defects or other nonconformance with Goods’ respective Specification, subject to Clause 10.2 (collectively, “Defects”).
2. The parameters of the Goods delivered to the Customer may differ from the parameters indicated in the Specification by the percentage or the amount specified in the Purchase Order. For avoidance of doubt such discrepancy shall not be treated as a Defect and the Customer shall not derive any claims for damage in this respect.
3. Customer may reject any Goods with respect to which any Defects have been discovered by the Customer (the “Non-Complying Goods”) or Goods that are not delivered to Customer in accordance with this Agreement, by providing written or email notice of such rejection to Scanway within 14  (fourteen) days following Delivery Date; provided, however, that Customer may provide notice of rejection of any Delivery of such Goods having any Defects that are not reasonably discoverable by Customer through standard inspection and testing of Goods within 14 (fourteen) days after Customer first becomes aware of any such Defect.
4. Scanway shall respond to any rejection, Defect notice or any quality-related complaint from Customer pursuant to Clause 10.3 in a timely manner. The Customer shall grant Scanway access to the rejected Products to the extent required and within an appropriate time period from the time such access is requested. At the request of Scanway, the rejected Products or respective parts thereof or samples of the same shall be made available to Scanway for inspection.
5. With respect to any Non-Complying Goods rejected by Customer, Scanway may elect, in its sole discretion, either (i) replace any Non-Complying Goods as soon as practicable at no additional charge to Customer; or (ii) reimbursed the Customer for the Price of the Non-Complying Goods actually paid.
6. If the Parties are unable to agree on whether the Goods rejected by Customer are Non-Complying Goods, then Scanway may hire an independent third-party expert or laboratory, to perform testing on such rejected Goods in accordance with the Specifications and applicable laws, which third-party expert laboratory shall promptly provide the results thereof to Customer and Scanway. Scanway must engage such third-party expert or laboratory within the thirty-day period following Scanway’s receipt of Customer’s rejection notice. If Scanway fails to engage such third-party expert or laboratory during such thirty-day period, then Scanway will be deemed to have waived its right to engage such third-party expert or laboratory. The determination of such tests shall be binding upon the Parties for all purposes hereunder. If such tests determine that the rejected Goods are Non-Complying Goods, then Scanway shall bear the costs of such tests and Customer’s remedies with respect to Non-Complying Goods as set forth in this Agreement shall apply to such Non-Complying Goods. Otherwise, Customer shall (i) bear the costs of such tests and shall remain obligated to pay Scanway the Price for such Goods and (ii) reimburse Scanway for any other charges paid by Scanway with respect to rejection of Goods.
7. Scanway shall not be liable for any properties of the Goods other than those set out in Specification or explicitly agreed upon. The Customer fully bears all risks of suitability and qualification in any and all customer-intended applications, including those made known to Scanway.

11.         ACCEPTANCE OF SERVICES

1. Scanway shall notify the Customer either in writing or by email on the completion of each Milestone of Services.
2. Acceptance of Services shall be conducted to confirm that each Milestone has been fully performed and all the work has been completed in accordance with the Project Schedule.
3. Customer shall have a right to accept Services or indicate discrepancies in within 5 (five) Business Days from receipt of notification on completion of each Milestone. The final acceptance of all Services hereunder should be confirmed in acceptance protocol made in writing or by email. If the Customer does not indicate any discrepancies in writing or by email within 5 (five) Business Days or if the Customer shall commence the use of Deliverables, such Milestone shall be considered accepted by the Customer. Notwithstanding the foregoing, Scanway may suspend performance of Services in a following Milestone in case the Customer fails to sign acceptance protocol as set out above and the schedule for subsequent Services shall be adjusted accordingly.
4. The Customer shall clearly indicate in writing or by email anomalies and discrepancies between provided Services and the Specification or Project Schedule.
5. In case any discrepancies are indicated, Scanway shall remove all of them in such time as accepted by the Parties, in any case not longer than within 20 (twenty) Business Days. After completion of such additional Services acceptance procedure shall be repeated. In such case however the Customer may accept the Services or indicate further discrepancies within 3 (three) Business Days. Any such further discrepancies may only be indicated if they refer to quantity and/or quality of the additional Services performed, including:
   1. previously indicated discrepancies or additional discrepancies being a result of such additionally performed Services;
   2. discrepancies not revealed before, despite the Customer used due diligence and took appropriate measures to determine if such discrepancies exist.
6. Acceptance of all Milestones shall be considered final acceptance of all Services.
7. Technical assistance and consultation Services which may be provided by Scanway are by nature a service with informative character and serves exclusively as an aid in technical orientation. No claims of any kind may be derived from the content of technical assistance and consultation Services unless such content has been expressly included in the Purchase Order or Project Schedule.

12. WARRANTY

1. Scanway provides the Customer with a limited warranty for the supplied Goods and performed Services. Scanway warrants that at the time of final Acceptance of Goods or Services and for 12 (twelve) months thereafter, Goods and Deliverables (if any) will perform in substantial compliance with the Specification and any applicable documentation provided by Scanway to the Customer. If during the applicable warranty period, Goods and Deliverables (if any) do not perform in substantial compliance with the Specification and any applicable documentation, the Customer shall notify Scanway as set out in Clause 10 of the failure to perform and Scanway shall, correct such Goods and Deliverables. This warranty shall terminate upon implementation of any changes to Goods or Deliverables without Scanway’s previous consent.
2. For the avoidance of doubt, this warranty does not cover advisory and consulting services, technical assistance or any other Services that do not produce any Deliverables.

13.  TERM AND TERMINATION

1. The Agreement is concluded for a definite period, starting from the Effective Date indicated in the Purchase Order. The Agreement lasts until the date of full completion of the Delivery of Goods or until the date of full completion of the Services, whichever occurs later, as set out in the Purchase Order.
2. Scanway may terminate this Agreement immediately by giving notice to the Customer if:
   1. Customer is in material breach of any of the terms of this Agreement, including, without limitation, Customer’s failure to perform its obligations which renders performance of Scanway’s Services impossible, in particular if the Customer is in breach of his obligation to cooperate or fails to provide data, information or infrastructure in accordance with Clause 8.6;
   2. any payment due from Customer is 20 (twenty) Business Days or more past due;
   3. any step is taken (in each case including, without limitation, the making of an application or the giving of any notice) towards the insolvency of Customer, including without limitation, any of the following:
      1. any steps being taken to liquidate, wind up, place into bankruptcy or dissolve Customer;
      2. the appointment of liquidator, trustee, receiver, administrative receiver, administrator or similar officer to Customer or any part of its respective undertaking or assets;
      3. Customer is unable to pay its debts as they fall due or is deemed unable to pay its debts.
   4. The right to terminate this Agreement given by the foregoing provisions of this Clause shall not prejudice any other right or remedy of any of the other Parties in respect of the breach concerned (if any) or any other breach.
   5. The expiry of the Agreement does not affect the performance of those Party’s obligations under the Agreement the nature of which is termless or limited by a longer term than duration of the Agreement. In particular, termination of the Agreement does not affect the provisions of Clause 14 concerning the confidentiality.
   6. Customer shall not be entitled to any compensation whatsoever on termination or expiry of this Agreement.

14.         CONFIDENTIALITY

1. Each Party shall, and shall cause each of its Representatives to keep secret and retain in strictest confidence any and all confidential matters relating to this Agreement and/or relating to the other Party, including but not limited to other Party’s trade secrets and all other information of a business, financial, marketing, technical, personnel or other nature relating to the business of the such Party including, without limitation, any customer or vendor lists developed by the such Party, know-how, specifications, inventions, computer hardware, software programs and source code, data relating to the development, research (collectively, “Confidential Information”); and shall not disclose Confidential Information, and shall cause its affiliates and Representatives not to disclose them, to any person except such Representatives.
2. The above shall not apply to information which:
   1. has been released to the general public without breach hereof;
   2. is known to a Party from other sources, without an obligation to maintain confidentiality and without breach hereof;
   3. has been released to the general public pursuant to written permission from the remaining Parties;
   4. disclosure is required by law;
   5. relates to the fact of concluding of this Agreement and its subject matter, except any detailed information and information about Scanway’s compensation hereunder.
3. Any disclosure under Clause 14.2(d), shall be made after prior consultation with the other Party (if possible); the other Party shall be informed about the disclosure (if permitted by law) and shall receive copy thereof, if it was made in writing.
4. Provisions of this Clause 14 shall survive expiration or termination of the Agreement.

15.         NON-SOLICITATION

During the Term hereof and 12 (twelve) months following its termination or expiration, the Customer shall not, directly or indirectly, on the Customer’s own behalf or in the service of or on behalf of others, solicit or induce any member of Scanway’s Personnel, to terminate his/her employment or engagement with Scanway in favor of employment by any other person, firm, corporation or other entity. This provision will apply whether or not the employee or contractor who is solicited or induced to terminate his/her employment is employed pursuant to a written agreement and whether or not his/her employment is for a determined period or at-will.

16.         INDEMNITY

1. Scanway shall indemnify, defend and hold harmless Customer and its and its directors, officers, managers, members, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (each, a “Customer Indemnified Party”) from and against any and all Losses of such Customer Indemnified Parties to the extent relating to, arising out of or resulting from any action of a Third Party arising out of or resulting from any of the following items (without duplication): (i) any injury or death of any Person due to any breach by Scanway or its Personnel of this Agreement; or (ii) the gross negligence, fraud or willful misconduct of Scanway or its Personnel in connection with the performance or non-performance of this Agreement.
2. Notwithstanding the foregoing, Scanway shall not be liable for Losses described in Clause 16.1 to the extent such Losses are: (i) caused by the gross negligence, fraud or willful misconduct of a Customer Indemnified Party in connection with the performance or non-performance of this Agreement; (ii) caused by the breach of any of the terms of this Agreement or a Purchase Order by a Customer Indemnified Party, including in connection with the performance or non-performance of this Agreement or (iii) subject to Customer’s indemnification obligations pursuant to Clause 16.3.
3. Customer shall indemnify, defend and hold harmless Scanway and its directors, officers, managers, members, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (each, a “Scanway Indemnified Party”) from and against any and all Losses of such Scanway Indemnified Parties to the extent relating to, arising out of or resulting from any Action of a Third Party arising out of or resulting from any of the following items (without duplication): (i) the gross negligence, fraud or willful misconduct of Customer or its Personnel in connection with the performance or non-performance of this Agreement; (iii) the use, sale, offer for sale, import or other commercialization of any Good (including any injury or death of any Person due to any of the foregoing in this clause (iii)).
4. Notwithstanding the foregoing, Customer shall not be liable for Losses described in Clause 16.3 to the extent such Losses are: (i) caused by the gross negligence, fraud or willful misconduct of a Scanway Indemnified Party in connection with the performance or non-performance of this Agreement; (ii) caused by the breach of any of the terms of this Agreement or any Purchase Order by a Scanway Indemnified Party or (iii) are subject to Scanway’s indemnification obligation pursuant to Section11.2.
5. Neither Party may settle or compromise any Third-Party Claim for which either Party is seeking to be indemnified hereunder without the prior written consent of the other Party, which consent may not be unreasonably withheld, conditioned or delayed, unless such settlement or compromise is solely for monetary damages that are fully payable by the settling or compromising party, does not involve any admission, finding or determination of wrongdoing or violation of law by the other Party and provides for a full, unconditional and irrevocable release of the other Party from all Liability in connection with the Third-Party Claim.

17.         LIMITATIONS OF LIABILITY

1. Except in the event of (i) Third Party Claims subject to a Scanway’s indemnification obligations pursuant to Clause 15, (ii) the gross negligence, fraud or willful misconduct of Scanway or its Personnel, Scanway’s aggregate liability to the Customer (or its Personnel that are indemnitees under Clause 15) under this Agreement shall not exceed, on a cumulative basis, the amounts paid pursuant to this Agreement solely with respect to the Purchase Order and sale of Goods and provision of Services thereunder for which such corresponding liability arose (the “Affected Products”) and not any other Goods or Services.
2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR DAMAGES OR CLAIMS ARISING OUT OF SCANWAY’S OR ITS PERSONNEL’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OR SCANWAY’S INDEMNIFICATION OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS UNDER CLAUSE 16.1, IN NO EVENT SHALL SCANWAY BE LIABLE TO THE CUSTOMER OR ANY CUSTOMER INDEMNIFIED PARTY HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL OR INDIRECT DAMAGES, LOSS OF REVENUE OR PROFITS, DIMINUTION IN VALUE, DAMAGES BASED ON MULTIPLE OF REVENUE OR EARNINGS OR OTHER PERFORMANCE METRIC, LOSS OF BUSINESS REPUTATION, PUNITIVE AND EXEMPLARY DAMAGES OR ANY SIMILAR DAMAGES ARISING OR RESULTING FROM OR RELATING TO THIS AGREEMENT, WHETHER SUCH ACTION IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE.
3. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SCANWAY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE GOODS. FURTHER, SCANWAY DOES NOT WARRANT RESULTS OF USE. SCANWAY’S LIABILITY UNDER STATUTORY WARRANTY FOR DEFECTS (RĘKOJMIA) IS EXCLUDED.
4. Scanway shall be under no liability in respect of any claim unless notice related to such claim shall have been delivered to Scanway by no later than 12 (twelve) months following Delivery of respective Goods or completion of respective Services.
5. The Customer accepts the fact that the Goods are innovative products still being developed and tested by Scanway and may not achieve the desired objectives of the Customer. With regard to the above, Scanway does not guarantee that the Goods will operate uninterrupted or error-free in in outer space or in transit between Earth and outer space.
6. Notwithstanding other rights of Scanway hereunder, Scanway may suspend any sales of Goods or provision of Services to Customer and suspend its appointment as Customer in case the Customer causes any damage to Scanway or its goodwill.

1.FORCE MAJEURE

1. For the purpose of this Agreement, an “Event of Force Majeure” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstance materially and adversely affects the ability of the Party to perform its obligations under this Agreement, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof.
2. Subject to the provisions of Clause 18.1 Events of Force Majeure shall include, but not be limited to:
   1. fire, chemical or radioactive contamination or ionising radiation, earthquakes, lightning, cyclones, hurricanes, floods, droughts or such other extreme weather or environmental conditions, unanticipated geological or ground conditions, epidemic, famine, plague or other natural calamities and acts of God;
   2. explosion, including solar explosion, impacts of micrometeoroids, accident, breakage of plant or equipment, structural collapse, or chemical contamination caused by a person not being the affected Party or one of its contractors or subcontractors or any of their respective employees or agents;
   3. stoppages in production process attributable to required adjustments to production technology or completion of constructions processes;
   4. acts of war (whether declared or undeclared), invasion, acts of terrorists, blockade, embargo, riot, public disorder, violent demonstrations, insurrection, rebellion, civil commotion and sabotage;
   5. strikes, lockouts, work stoppage, labour disputes, and such other industrial action by workers related to or in response to the terms and conditions of employment of those workers or others with whom they are affiliated save when such event is directly related to, or in direct response to any employment policy or practice (with respect to wages or otherwise) of the Party whose workers resort to such action;
   6. failure or inability to obtain or renew any license, consent, permit or registration on terms and conditions as favorable in all material respects as those contained in the original license, consent, permit or registration relating to a Party’s business or inability to obtain any new license, consent, permit or registration in such time as would allow for due performance of Party’s obligations hereunder (other than due to a breach by a Party of any of such terms and conditions);
   7. any action or failure to act without justifiable cause by any competent authority;
   8. limitations or lack of availability of raw materials or components required to construct, manufacture, or repair the Goods or Services, or limitations or delays in supply thereof;
   9. any changes to applicable law, legal prohibition or significant limitation on either Party’s ability to perform its obligations under this Agreement or affecting availability of raw material, including passing of a statute, decree, regulation or order by a competent authority prohibiting or significantly limiting that Party from performing its obligations under this Agreement.
3. No Party shall be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to an Event of Force Majeure.
4. If a Party wishes to claim protection in respect of an Event of Force Majeure, it shall as soon as possible, following the occurrence or date of commencement of such Event of Force Majeure, notify the other Party of the nature and expected duration of such Event of Force Majeure and shall thereafter keep the other Party informed until such time as it is able to perform its obligations. The Parties shall use their reasonable endeavors to:
   1. overcome the effects of the Event of Force Majeure as soon as practicable;
   2. mitigate the effect of any delay occasioned by any Event of Force Majeure; including by recourse to acceptable alternative sources of Fuel (which acceptance shall not be unreasonably withheld by either Party); and
   3. to ensure resumption of normal performance of this Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable,

provided that neither Party shall be obliged to settle any strike, lock out, work stoppage, labour dispute or such other industrial action by its employees.

2.     Entire agreement

1. These General Terms together with the Purchase Order constitute the entire agreement between the Parties and supersedes any previous agreement or arrangement between the Parties or any of them relating to the subject matter hereof.
2. In case of any discrepancy or conflict between these General Terms, Purchase Order and Offer, the relevant provisions of Purchase Order shall prevail. In the event of any conflict or discrepancy between the Purchase Order and the Offer, the provisions of Purchase Order shall prevail.

3.           Severance

1. If any provision of these General Terms is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect or impair:
   1. the legality, validity or enforceability in that jurisdiction of any other provision of these General Terms; or
   2. the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of these General Terms.
2. If any provision of these General Terms is found to be illegal, invalid or unenforceable as described in this Clause, but would be legal, valid or enforceable if some part of the provision were deleted or modified, the provision in question shall apply with such modification(s) and/or deletions(s) as may be necessary to make it valid, but such modification(s) and/or deletions(s) shall only apply in the jurisdiction in question and not in any other jurisdictions.

4.           No assignment

Customer shall not assign or otherwise dispose of any of its rights, obligations, or interests hereunder, without prior written consent of Scanway.

5.           NOTICES

Any notice or other communication shall be in English, made in writing and may be served by delivering it personally or sent by prepaid registered post or courier to the address and for the attention of the relevant Party set out in the Purchase Order. Notices other than for termination of this Agreement may also be made by email. Any such notice shall be deemed to have been received:

1. if delivered personally, at the time of delivery;
2. in the case of registered post, at the time of delivery, but not later than on 21^st day after being sent; and
3. in the case of email, at the time of transmission.

6.           GOVERNING LAW AND JURISDICTION

1. Governing law. This Agreement shall be governed by and construed in accordance with the laws of Poland without giving effect to any of the conflict of law principles or rules thereof.
2. Exclusion of CISG. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
3. Dispute resolution and jurisdiction. Each Party irrevocably agrees to submit all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the courts of Poland having jurisdiction over Scanway’s registered office.

7.           DEFINITIONS AND INTERPRETATION

1. All capitalized terms used in these General Terms or in the Agreement shall have their respective meanings set forth below:

1. Any reference to a statute, statutory provision or subordinate legislation shall be construed as referring to that statute, statutory provision or subordinate legislation as amended, modified, consolidated, re-enacted or replaced and in force from time to time.
2. Unless the context otherwise requires:
   1. words denoting the singular include the plural and vice versa;
   2. all references to time, will be the time in Warsaw, Poland;
   3. words denoting any gender include all other genders;
   4. any reference to “persons” includes individuals, bodies corporate, companies, partnerships, unincorporated associations, firms, trusts and all other legal entities;
   5. any reference to a party is to Scanway or Customer, respectively.
3. Clause headings are for convenience only and shall not affect the interpretation hereof. Any reference to a Clause, Sub-clause, Recital or Schedule is to the relevant Clause, Sub-clause, Recital or Schedule to these General Terms.
4. The Schedules to the Agreement shall for all purposes form part thereof. In case of amendment or update of a Schedule from time to time, upon amendment or update of such Schedule it shall replace the former Schedule.

Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.