General Terms And Conditions and Terms of Use

For the General Terms and Conditions of Use for U.S customers please refer to GTCs ENPULSION Inc.

1. Scope of the General Terms and Conditions and Terms of Use

1.1. These General Terms and Conditions and Terms of Use (GTCs) shall govern all agreements between Enpulsion GmbH (FN 448479d), with an address at Office Park 2, 1300 Wien-Flughafen, Austria (ENPULSION), on the one hand, and the customer (Customer), on the other hand. The Customer and ENPULSION are each referred to herein as a Party.

1.2. Neither ENPULSION nor Customer is a Prohibited Person and the Agreement does not constitute a transaction as set out in Section 1.2.

Prohibited Person means a natural person or legal entity with legal personality (Person),
i. subject to prohibition (including economic, financial and /or travel) or other restrictive measure or sanction by any government or inter-governmental organization including but not limited to the (a) United Nations Security Council Sanctions Committee, (b) the lists maintained by the European Union’s European External Action Service designed to implement the EU’s Common Foreign and Security Policy, and (c) the country of residence of such Person.
ii. subject to the Foreign Corrupt Practices Act and economic sanctions and export controls administered by the U.S. Department of the Treasury and the U.S. Department of Commerce.
iii. that transacts or otherwise deals directly or indirectly with or related to an Embargoed Jurisdiction or Sanctioned Person or exports or reexports, directly or indirectly, in violation of any applicable US laws or regulations, or otherwise uses the Content for any prohibited purpose.

Content means any regulated data transmitted in connection with these GTCs.

Embargoed Jurisdiction means a country, region, territory or government with respect to which the U.S. government imposes a trade or investment embargo from time to time, which presently (as of 05/2022) includes Belarus, Crimea, Cuba, Iran, North Korea, Russia, Syria, and Venezuela.

Sanctioned Person means any Person with respect to which or whom U.S. citizens are generally forbidden to transact under economic sanctions including, without limitation, a person on the List of Specially Designated Nationals and Blocked Persons.

1.3. These GTCs shall govern the relationship of the Parties in all respects unless and only to the extent that the Parties expressly agree otherwise in writing. Unless expressly specified therein in writing, these GTCs shall govern and are hereby incorporated by reference into any and all requests for quotations, quotations, acceptances, purchase orders or other agreements, correspondence or arrangements between the Parties (whether written or oral). In the event of any conflict between any of the foregoing and the terms and conditions of the GTCs, the terms and conditions of the GTCs shall control and prevail as between the Parties.

1.4. For avoidance of doubt, these GTCs supersede any and all prior, contemporaneous or future oral discussions, agreements, negotiations, arrangements or understandings between the Parties.

1.5. ENPULSION reserves the right, from time to time at its discretion and with a four weeks’ notice to Customer, to update, amend or otherwise supplement these GTCs, and Customer shall be bound by and subject to the GTCs as they may from time to time be so updated, amended or supplemented. The GTCs, as so updated, amended or supplemented from time to time will be available for review by Customer on the homepage of ENPULSION at https://www.enpulsion.com/terms-of-service/.

1.6. Customer shall at all times ensure and be responsible for the full compliance with and observance of these GTCs by Customer’s affiliates, officers, directors, employees, agents, contractors, consultants, vendors, invitees, and representatives.

2. Scope and Conclusion of the Agreement

2.1. ENPULSION’s display of its products and services (including any related pricing or other information) on its website, or in catalogs, brochures, or datasheets or in any quotation issued by ENPULSION to Customer, shall under no circumstances constitute a binding offer capable of being accepted by Customer to conclude an agreement for the purchase and sale of ENPULSION’s products and services, but rather, shall constitute only a non-binding invitation from ENPULSION to Customer to make an offer to ENPULSION (invitatio ad offerendum) for the purchase and sale of such products and services.

2.2. In response to a quotation issued by ENPULSION at Customer’s request, or otherwise as permitted on or through ENPULSION’s website or by ENPULSION’s personnel, Customer may submit a binding offer to purchase specified products and services of ENPULSION (Products) by submitting a written offer for the purchase of such Products to ENPULSION. For avoidance of doubt, an offer sent via email or facsimile shall constitute a “written offer” for purposes of these GTCs.

2.3. Once Customer has submitted a written offer, such written offer shall be binding upon Customer and shall be irrevocable by Customer for a period of four weeks after ENPULSION’s receipt of such offer. Following the expiration of such four-week period, such written offer shall remain binding upon Customer and shall remain subject to acceptance by ENPULSION for an unlimited period of time, unless and until ENPULSION receives from Customer an express written revocation thereof.

2.4. A binding agreement for the purchase and sale of the Products specified in Customer’s offer shall only be deemed to have been entered into by the Parties at such time, if any, as ENPULSION delivers to Customer an express written acceptance of Customer’s offer (which writtenacceptance may be delivered by email, facsimile, courier service, ordinary mail or otherwise) (Agreement).

2.5. Regardless of whether ENPULSION and Customer enter into an Agreement for the relevant Products, Customer shall be solely responsible for the fees and costs of any drawings, sketches, samples, calculations or simulations, and any other work or services performed by ENPULSION in connection with any offer by, or negotiations with Customer, in any case to the extent any of the same are requested by Customer, and/or deemed appropriate by ENPULSION, and in any case have been agreed by Customer previously. In such case, ENPULSION shall invoice Customer at ENPULSION’s standard rates for any such fees and costs, and any such fees and costs shall be due and payable by Customer to ENPULSION as otherwise specified under Section 5 promptly upon (but in no event later than 14 days after) Customer being invoiced by ENPULSION.

2.6. ENPULSION reserves the right in its sole discretion to decline (i) any offers for any reason of for no reason in its sole discretion and (ii) to deliver Products to any given address, region or jurisdiction.

3. Obligations of Customer

3.1. Customer guarantees that all information, regardless of its form, provided to ENPULSION by or on behalf of Customer:
a. is not false, inaccurate or misleading;
b. does not omit any material facts;
c. does not breach any rights of third parties, or agreements with such third parties, including any non-disclosure of confidentiality obligations to which Customer may be subject;
d. does not breach any laws, statutes, regulations or other applicable laws; and
e. does not contain any viruses or programs which cause damages, impede or which intercept information, data and personal information or use such data illegitimately.

3.2. Customer shall be responsible for the payment of any and all additional fees or costs in connection with any services requested by Customer, or any services which ENPULSION reasonably believes to be necessary in connection with its Agreement to provide Products to Customer with Customer’s prior approval, in each case, whether or not such services are expressly covered by the Agreement. ENPULSION shall invoice Customer at ENPULSION’s standard rates for any such fees and costs, and such fees and costs shall be due and payable by Customer to ENPULSION as otherwise specified under Section “Conditions of payment” promptly upon (and in no event more than 14 days following) Customer being invoiced by ENPULSION.

4. Prices and Availability

4.1. The pricing and other information set forth in ENPULSION’s price lists, advertisements, marketing and sales materials, catalogs, brochures and datasheets, and on ENPULSION’s website, is at all times subject to change. ENPULSION reserves the right to amend such pricing and other information at any time and with a four weeks’ notice to Customer. Customer acknowledges and agrees that in relying on any information on ENPULSION’s website, it shall refer to the most current version thereof, and actively contact ENPULSION in case of any doubt or conflict with previously received information.

4.2. All prices for Products (and calculations in connection therewith) exclude VAT, if any, loading and unloading, shipping and handling, customs, insurance and taxes.

4.3. ENPULSION reserves the right at any time, including after entering into an Agreement with Customer, to refrain from fulfilling Customer’s order due to in particular, but not limited to delays in ENPULSION’s supply chain, material increases in ENPULSION’s cost prices, an insolvency or bankruptcy proceeding is opened against the assets of Customer, or if the opening of such proceeding is rejected for the lack of cost recovery, material breach of Customer with regard to any order of such Customer, or if ENPULSION detects after entering into an Agreement with Customer that Customer is, or is controlled by, a direct or indirect competitor of ENPULSION. In each such case, ENPULSION shall inform Customer as soon as is practical after any such determination is made that ENPULSION will not deliver the ordered Products to Customer, and any amounts in respect of the purchase price for the Products, if already paid by Customer, shall be refunded.

5. Conditions of payment

5.1. ENPULSION only accepts payments via wire transfer.

5.2. Customer shall make all payments in Euro, and shall be responsible for any bank fees or surcharges or other costs or expenses of making payment to ENPULSION.

5.3. Unless otherwise expressly agreed by the Parties in writing, Customer must pay the full purchase price for any Products within four weeks after ENPULSION’S acceptance of Customer’s offer. Delivery of the Products will only be processed after ENPULSION receives the full purchase price.

5.4. In case ENPULSION and Customer agree that a down payment is required in connection with the purchase or any Products by Customer, Customer shall pay the down payment to ENPULSION prior to ENPULSION beginning any activity in connection with the Agreement. Unless otherwise expressly agreed by the Parties in writing, (a) any down payment is due and payable by Customer within 14 days after ENPULSION accepts Customer’s offer and (b) Customer shall pay the remaining purchase price for the relevant Products within 14 days after ENPULSION’S delivery of each single respective Product.

5.5. Customer shall under no circumstances set-off or net against amounts otherwise payable by Customer to ENPULSION under these GTCs any amounts due to Customer from ENPULSION or any claims that Customer may have against ENPULSION. Customer shall not be entitled to retain any payments owed to ENPULSION hereunder, and hereby waives any rights of retention, set-off, warehousing, judicial deposit or any kind of bond.

6. Default in Payment

6.1. In case of Customer’s payment default, ENPULSION is entitled to claim interest on any overdue amounts at a rate equal to 12% per annum (or, if lower, the maximum rate permitted under applicable laws) and to withhold any further performance under its Agreement with Customer. Such remedies shall not be exclusive, and notwithstanding ENPULSION’s exercise thereof, ENPULSION shall retain the right to pursue any and all other claims and remedies available to it, whether at law or in equity.

6.2. Customer shall be liable for any and all costs and expenses incurred by ENPULSION to enforce Customer’s obligations to make payment hereunder, whether judicially or otherwise, including but not limited to the actual fees and expenses of legal and tax counsel and debt-collection agencies. In addition to and not in limitation of the foregoing, Customer may be charged a base mount of EUR 40 per collection action taken (whether in writing, verbally, or otherwise) irrespective of damage and fault. The foregoing remedies shall not be exclusive, and notwithstanding ENPULSION’s exercise thereof, ENPULSION shall retain the right to pursue any and all other claims and remedies available to it, whether at law or in equity.
Customer shall be responsible for and shall pay to ENPULSION, any and all additional costs, expenses, fees or other amounts that may be incurred by ENPULSION as a result of any delay by Customer in the performance of its obligations to ENPULSION hereunder or otherwise.

7. Delivery and Transfer of Risk, Force Majeure

7.1. The Products shall be deemed delivered when they have been prepared for shipment by ENPULSION (Delivery Time).

7.2. ENPULSION shall give Customer at least 1 week advance notice of the Delivery Time.

7.3. The delivery terms for all deliveries of Products hereunder are EXW Wiener Neustadt, Austria (Incoterms 2020). Accordingly, Customer shall be solely responsible to arrange for and complete the shipment of Products from ENPULSION’S facility from and after the Delivery Time. For avoidance of doubt, Customer shall pay all costs and expenses related to shipment of the Products, including, without limitation, the costs and expenses of any common carrier or other shipper or freight company, and cargo insurance, if any.

7.4. Any specified delivery dates communicated by ENPULSION to Customer are estimates only.

7.5. To the greatest extent permitted by law, Customer hereby irrevocably waives and agrees not to assert any claims against ENPULSION due to ENPULSION’s delayed delivery of any Products or withdrawal from any Agreement to provide Products, in each case as contemplated and permitted by these GTCs. ENPULSION shall under no circumstances be liable to Customer for any losses or damages of any kind suffered or incurred by Customer due to any of the foregoing.

7.6. ENPULSION shall bear the costs for preparing the Products for shipment as of the Delivery Time under Section 7.1.

7.7. A Party whose performance of its obligations hereunder (except payment obligations unless otherwise expressly provided herein) is prevented, restricted or interfered with by reason of a Force Majeure condition shall be excused from such performance to the extent and during the continuance of such Force Majeure condition; provided, that such Party immediately continues performance at such time and to the extent the Force Majeure condition is removed. Delivery and other timing obligations hereunder shall be extended on a day-for-day basis, during the continuation of any Force Majeure condition.
For the purposes of this Section 7.7, “Force Majeure” shall mean the actual occurrence of any extraordinary event beyond the reasonable control of a Party or such Party’s suppliers or other commercial counterparties, including but not limited to acts of warfare (whether an actual declaration of war is made or not), acts of terrorism (in particular through non-state actors), sabotage, insurrection, rebellion, strike, riot or other act of civil disobedience, acts of a public enemy, actions or inactions of any governmental authority, judicial action, fire, accident, explosion, epidemic, pandemic, quarantine, natural disasters such as storm, flood, volcanic activity, or earthquake, or any other extraordinary event commonly referred to as “force majeure”, “vis major”, “acts of God” or the like.

8. Transfer of Title

8.1. ENPULSION retains all right, title and interest in and to all Products until payment in full of the purchase price for such Products been received by ENPULSION, whether or not such Products have been delivered to Customer hereunder.

8.2. If title to any Product remains with ENPULSION after delivery of such Product to Customer, Customer may resell such Products only if the Customer procures and delivers to ENPULSION a written acknowledgment from such transferee in form satisfactory to ENPULSION acknowledging that such transfer is in all respects subject to ENPULSION’s retained title, together with any and all other information that ENPULSION may reasonably request in connection with such transfer or such transferee.

8.3. All claims of Customer resulting from a resale of Products as to which ENPULSION retains title are hereby assigned to ENPULSION as security for all claims that ENPULSION has or may have against Customer.

9. Warranty

9.1. ENPULSION warrants that to the best of its knowledge:
a) no fact or circumstance exists that materially affects its capacity to perform the Agreement;
b) it will comply with all applicable laws, regulations and mandatory codes of conduct that are related to the subject matter of the Agreement;
c) it will perform all work (including but limited to performing services and manufacturing products) in a proper, workmanlike and professional manner using appropriately qualified and trained personnel; and
d) it has the skills, resources and expertise to perform the Agreement.
ENPULSION hereby expressly excludes any warranty to the greatest extent permitted by law except as expressly stated otherwise herein.

9.2. Notwithstanding the existence of any non-waivable warranty rights that may be available to Customer under applicable law, in no event shall ENPULSION be liable to Customer for any amount in connection with claims relating to any Product in excess of the purchase price actually paid by Customer to ENPULSION for the such Product, including, without limitation, in connection with any claims for ENPULSION’s gross negligence or willful misconduct, for the Customer’s consequential or other special damages, or otherwise.

9.3. Any non-waivable warranty rights to which Customer might otherwise be entitled shall be automatically voided and of no further effect with respect to any Product if such Product has been altered or modified in any way, or if an attempt to alter or modify such Product has been made, in each case, by anyone other than ENPULSION.

9.4. Customer may make a claim with respect to any non-waivable warranty as to any Product only if Customer immediately, but not later than 14 days following ENPULSION’s delivery of such Product, notifies ENPULSION in writing of any defects for which any such warranty claim can and is to be made, including a detailed report of any such defects. Following receipt of any such notification from Customer, ENPULSION shall notify Customer whether or not to return the relevant Product to ENPULSION and as to how ENPULSION has otherwise determined to proceed with respect to Customer’s claim.

9.5. If and to the extent a non-waivable warranty applies to any Product defect, in ENPULSION’s sole discretion, it may choose to replace such defective Product or defective parts thereof, or to repair such defective Product. ENPULSION may also ask the Customer to return any such defective Product to ENPULSION for repair, or grant a price reduction with respect thereto. ENPULSION shall bear the costs of the return of any such defective Product (whereby ENPULSION shall be entitled to prescribe the shipment provide and the mode of shipment, packaging, etc) and the shipment of the repaired or replaced such Product.

9.6. In case that ENPULSION performs a repair of Products at Customer’s facilities, Customer shall support ENPULSION in providing workers, materials, and tools as deemed necessary by ENPULSION and as available at Customer at Customer’s own costs. In this regard, Customer shall support ENPULSION in repairing the Products. Customer shall support ENPULSION in repairing the Products in making all required arrangements deemed necessary by ENPULSION.

9.7. Any service performed by ENPULSION with respect to any Product shall not extend any otherwise applicable warranty period with respect to such Product, nor by performing any such service shall ENPULSION be deemed to acknowledge or imply any rights by Customer (including any warranty rights) or any fault or liability on the part of ENPULSION.

9.8. If ENPULSION accepts the return of any allegedly defective Product or consents to examine any allegedly defective Product, no such acceptance or examination by ENPULSION shall under any circumstances be construed as an admission by ENPULSION with respect to any claim of Customer or of any fault or liability on the part of ENPULSION.

9.9. The burden of proof concerning the presence of the defect at time of delivery lies with the Customer.

9.10. The images and content on ENPULSION’s website are for illustration purposes only. Deviations between the delivered Products and any such images are possible due to different computer settings, and any such deviation shall not constitute a defect with respect to a Product.

9.11. The assignment of warranty claims, if any, shall be excluded.

10. Exclusion and Limitation of ENPULSION’s Liability

10.1. ENPULSION shall not be liable to Customer for any claims for losses or damages unless and only to the extent that any such losses or damages were caused by ENPULSION intentionally. ENPULSION shall only be liable for personal injury in the case that ENPULSION’s gross negligence or willful misconduct actually and directly results in personal injury.

10.2. ENPULSION’s total liability in case of any claims by Customer or any other Person for losses or damages in connection with any Product is expressly limited to any amounts actually received by ENPULSION from such Customer with respect to such Product. Under no circumstances shall ENPULSION be liable for loss of profits, punitive, consequential or any other indirect or special damages.

10.3. Only monetary compensation shall be rendered by ENPULSION in case ENPULSION shall be determined to be liable to Customer for any losses or damages. Customer expressly waives any legal and equitable rights to specific performance or other equitable relief.

10.4. To the extent ENPULSION might otherwise be liable for any claims for losses or damages with respect to any Product, such claims must be legally asserted by Customer against ENPULSION within three months from the date on which Customer obtains (or should reasonably have been expected to obtain) actual knowledge of the facts and circumstances giving rise to such losses or damages, without regard to whether, at such time, Customer was aware of the amount or severity of the losses or damages, but in any case until the earlier of (i) three years of delivery to Customer, and (ii) launch of the satellite at the latest. The burden of proving that Customer neither had actual knowledge nor should reasonably have been expected to have knowledge of the facts and circumstances giving rise to the losses or damages lies with the Customer and not with ENPULSION.

10.5. ENPULSION assumes no liability for the retention of any documents, manuscripts, drafts, sketches, samples, models, or films or similar materials provided by Customer to ENPULSION, unless any of the same are lost or damaged result of ENPULSION’s willful misconduct. Customer is solely responsible for adequate insurance for such items.

10.6. ENPULSION assumes no liability for Customer’s assembling of Products or Customer’s placing in service or other use of Products.

10.7. Limitations of liability shall also apply to any pre-contractual (culpa in contrahendo) or non- contractual (ex delicto) obligations under law.

11. Data Processing

Customer agrees that its personal data, namely name, date of birth / company number, address, phone number, email address, payment data (bank account details, credit card), records of any interaction with ENPULSION are collected, electronically processed and stored by ENPULSION for the purpose of processing the contractual relationship, namely in particular the shipment and delivery of Products as well as for issuing invoices. Customer further agrees that ENPULSION will forward and disclose Customer’s company name, date of birth / company number, address, phone number, email address, payment data (bank account details, credit card), to its shareholders, legal representatives, tax advisors and other recipients necessary and designated for the performance of the Agreement, as all of these data are necessary for the performance of the Agreement by ENPULSION.

12. Websites and services of third-party-providers

Services of ENPULSION may include links to websites, products, and services of other companies. ENPULSION is not liable for the content of such websites, products, and services. The data collected by such third-party providers are governed by their respective privacy policies. ENPULSION recommends that Customer inquire with such third parties about their privacy policies.

13. IP Rights

13.1. Nothing herein shall be construed as an assignment by ENPULSION of any intellectual property or other proprietary rights to Customer in the course of the Agreement.

13.2. Each Party acknowledges and agrees that it obtains no rights in the other Party’s trade name, trademarks, services marks, copyright materials, patents, patent applications, or other intellectual property, and that all goodwill arising as a result of the Agreement inures to the benefit of the respective owner of the intellectual property. Each Party shall retain the rights to any intellectual property it holds as of the date of the Agreement and ENPULSION shall be the sole and exclusive owner of any intellectual property created in the performance of the Agreement.

13.3. ENPULSION grants to Customer with regard to any Product sold under the Agreement, solely (i) a non-transferable, non-exclusive license to use the Products which is limited to the purpose of the Agreement, (ii) the right to use the software included in such Products, and (iii) to use the documentation related to any such Product.

13.4. Customer may not alter or recreate, or attempt to alter or recreate (i) any Product, (ii) the software in such Product, or (iii) any part thereof, in each case, in any scale.

13.5. All pictures, images, trademarks, logos, designs, drafts, pertinent drawings and descriptions of ENPULSION are protected by copyrights. Customer may not make use of them other than as agreed upon under these GTCs. Customer may in particular not copy them or make them accessible to third parties.

13.6. Notwithstanding Section 14.2, ENPULSION may use Customer’s name and company name or logo for marketing purposes, including, without limitation, in connection with ENPULSION’s press releases, public announcements, advertisements, or other form of publicity concerning the Agreement with Customer.

14. Product Labelling

ENPULSION has the right to determine the labeling of the Products in its sole discretion. Such label may include, without limitation, a trade mark or logo of ENPULSION.

15. Governing Law, Forum

15.1. Any disputes arising out of or in context of a relationship governed by these GTCs shall be governed by Austrian Law under the explicit exclusion of the United Nations Convention on Contracts on the International Sale of Goods, and without giving effect to such rules of international private law that would lead to the application of any law other than Austrian law.

15.2. Any disputes relating to these GTCs shall be subject to the exclusive jurisdiction of the courts competent for the first district of Vienna (Wien-Innere Stadt).

16. Miscellaneous

16.1. Customer is solely responsible that all legal requirements for the use and a possible resale of Products by Customer are met and complied with.

16.2. All amendments, modifications, changes, supplements and additions to these GTCs (except amendments under Section 1.5) shall be in writing and executed by the Parties. Any waiver of any term or condition of these GTCs shall be in writing and shall be executed by or on behalf of the Party against whom enforcement of such waiver is sought.

16.3. Whenever under this GTCs written form is required, email suffices, unless expressly otherwise required by this GTCs or mandatory applicable law.

16.4. The purpose of Section titles and headings in these GTCs is solely to provide structure and clarity and any such Section titles or headings shall have no legal effect in the construction or interpretation of these GTCs.

16.5. The invalidity of one or more, or parts, of terms or provisions of these GTCs shall not affect the validity of any other term or provision of the GTCs. ENPULSION and Customer agree to reach a binding agreement to replace the invalid provision by a valid term as closely as possible to the purpose of the invalid provision.