改訂 2014 年 6 月 売買等の標準契約約款 Rev 6/2014
Contents
1. accrued f The termination or expiration of any Purchase Agreement will not affect the survival and continuing validity of any provision which expressly or by implication is intended to continue in force after such termination or expiration g Neither party will be responsible for nor be in default under a Purchase Agreement due to any delays or failure of performance except payment obligations resulting from acts or causes beyond its reasonable control including without limitation acts of God acts of war third party labor strikes power failures floods earthquakes other natural disasters or other similar events Force Majeure Event In the event that either party is unable to perform any of its obligations under a Purchase Agreement because of a Force Majeure Event the party who has been so affected will promptly give notice to the other and will exercise all reasonable efforts to resume performance h All disputes arising from or related to a Purchase Agreement will be governed exclusively by and construe2. 8 7 Intellectual Property a Each party retains all right title and interest in its respective trade secrets inventions copyrights and other intellectual property Buyer does not acquire any Ownership interest in any intellectual property incorporated into or related to the Products including without limitation any Esko software to which Buyer is provided access Buyer will not enforce against Esko its vendors Or its other customers any copyrights or patent or other intellectual property included in any system process Or business method utilizing any intellectual property in Products provided to Buyer Buyer may not remove modify or obscure any copyright trademark or other proprietary rights notices that appear on any Products or other materials provided by Esko b Buyer will not modify or remove any indications on the Products or packaging such as trademarks trade names and copyrights 8 Data Security Esko has data privacy and security practices in place to help ensure the security of
3. provide the Products is subject to Buyer meeting all of its obligations in the Purchase Agreements and providing the necesSary resources typically expected of a buyer including without limitation adequate facilities light heat ventilation electrical currents outlets water and internet connectivity and any other assistance reasonably requested by Esko b Esko may audit Buyer at any time to the extent necessary to verify Buyer s compliance with the Purchase Agreements provided Esko makes commercially reasonable efforts to minimize any interruption to Buyer s business c In case of any conflict between these Terms and any other Purchase Agreement the latter will control Any modifications to a Purchase Adgreement must be in writing and signed by both Darties d Buyer may not assign or otherwise transfer any of its rights interests or obligations under a Purchase Agreement without Esko s prior written consent Any assignment contrary to this subsection will be null and void e The failure of either party to strictly enforce any of the terms or conditions in any Purchase Agreement will not be c
4. h Esko Esko Esko i Esko
5. Esko Esko Esko Esko Esko b Esko
6. ii 5 Esko Esko i
7. Esko Esko 10 Limitation of Liability IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT PUNITIVE SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS IN CONNECTION WITH OR ARISING OUT OF A PURCHASE AGREEMENT ESKO WILL NOT BE LIABLE FOR ANY LOSS OF USE DATA OR OTHER ECONOMIC ADVANTAGE WHETHER OR NOT IT HAS BEEN ADVISED OF THAT POSSIBILITY ESKO S MAXIMUM LIABILITY UNDER ANY PURCHASE AGREEMENT REGA
8. Esko Esko Esko Se ii Esko E Esko 7 0 oO Esko a Buyer shall inspect the Products upon delivery for visible defects and promptly communicate any defects to Esko b Unless Testi
9. Esko c d Esko e 0 1
10. 3 Esko i vt 14 Relocation of Equipment Buyer may move the equipment covered under a Care Package CP Equipment if it is moved within the same country Esko is provided 60 days prior written notice and Esko is permitted to supervise the dismantling packing and reinstall of the CP Equipment at Esko s then current rates If Esko determines the CP Equipment is not in good working order due to the move Esko may terminate the Care Package or if requested by Buyer make necessary repairs and adjustments at Esko s then current rates 15 Fees and Payment Buyer will pay all fees by cash in 30 days after invoice month end closing Unless otherwise provided in the Care Package Order Form Esko may adjust fees each contract year to account for inflation indexation as applicable 16 Parts Replacement parts or products may be new or refurbished but will be equivalent to new in performance All Esko repla
11. ii iii iv V NN HARDWARE SOFTWARE SYSTEMS DATA PROGRAMS OR THE LIKE 11 Confidential Information The parties acknowledge that each may be exposed to certain information that is not generally known to the public which would be considered confidential or proprietary by the other party Confidential Information Confidential Information includes without limitation any Purchase Agreement Esko s pricing and all competitively sensitive or secret business marketing and techni
12. Esko nn days of the invoice date Payments are not subject to setoff or recoupment for any present or future claim Buyer may have 9 Without prejudice to any other remedy available to Esko including but not limited to remedies Suspension and termination rights set forth in the EULA if Buyer fails to timely make any payment or is in material breach of any Purchase Agreement and fails to cure within 10 days of written demand or becomes insolvent makes an assignment for the benefit of creditors files or has filed against it a petition in bankruptcy has a receiver appointed for its assets is dissolved or liguidated or makes a sale in bulk of all or substantially all of its assets other than for the purposes of a corporate reorganization Esko may immediately i terminate all affected Purchase Agreements and all of Esko s obligations will automatically terminate or ii suspend all of Buyer s rights to use the Products in whole or in part and all of Esko s obligations until Buyer has remedied any Such breach 7 8
13. conditions in Buyer s orders Buyer s acceptance of delivery of Products will constitute its acceptance of these Terms 2 2 Delivery 8 Ex Works NN a Delivery will be Ex Works Incoterms 2010 Title will transfer to Buyer upon shipment b Esko Esko b Esko will endeavor to deliver the Products in accordance SNE Esko Esko Esko 15
14. the applicable Esko s Software as a Service Agreement attached hereto or otherwise available at www esko com termsandconditions SaaS Agreement www esko com termsandconditions Esko SaaS 4 4 Installation Training Instruction Manuals a Esko E a Esko will provide installation and training as provided in the a 0 EKo Wi rd ils and other Produet S sko will provide instruction manuals and other Produc 5 Esko oa 9 3 RE documentation Documentation as provided in a Purchase Agreement and as necessary for Buyer s safe and proper use of the Products Buyer will comply and ensure al
15. RS 0 predetermined period of time until all fees have been paid in i full at which time Esko will promptly provide for a perpetual license In case of purchase of renewable term based software licenses 2 6 i e Time Limited Licenses as further defined by the applicable EULA Esko reserves the right to revise the price for such EULA 3 NM term 9 Ng SP OO any renewal 1 period comes into effect provided that such new price is A SI hE 2 communicated to or is made available to Buyer on or before the licable renewal cale renewa date f Buyer must notify Esko of any disputes to an invoice within 15
16. Esko c with the delivery dates provided by Esko Delivery Date Esko will be responsible for any expedited shipping charges necessary to meet a Delivery Date for any Esko caused delay lf Esko fails to meet a Delivery Date Buyer may provide written demand for delivery by a reasonable delivery date which shall be at least 15 days from the date of Buyer s written demand If Esko fails to meet such demand Buyer may cancel its order for the delayed Products and any other Products purchased under the same order that cannot be used without the cancelled Products c Buyer is responsible for complying with all applicabl
17. 2014 6 Rev 6 2014 GENERAL TERMS AND CONDITIONS OF SALE 1 Esko Esko Esko 1 Terms Acceptance These General Terms and Conditions of Sale Terms apply to the sale licensing and all other provision of Esko s Products to Buyer Products shall mean hardware software and any other goods and Services provided to Buyer by Esko pursuant to a P
18. f 15 ESko 9 Esko EULA 10 NN AH Esko 00 Esko ii
19. provides Buyer with new pricing at least 45 days prior to the start of the renewal term Notwithstanding the foregoing at Esko 1 Buyers option Esko will renew the Care Package for at least one renewal term at the same pricing as the initial term adjusted for indexation inflation as applicable
20. Buyer s data and other Confidential Information and Esko s compliance with applicable data security and privacy laws and regulations 9 Esko www esko com termsand condiitons Esko 9 Warranty Esko warrants the Products in accordance with its standard warranty policy attached hereto or available at www esko com termsandconditions THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT 10 Esko
21. Ex Works a The purchase price is quoted Ex Works Incoterms 2010 Incoterms2010 and excludes shipping taxes duties and any speclal delivery 0 Buyer is RS i all SM AN taxes SE ased on Esko s income Any costs for certificates of origin Esko legalizations consular invoices and the like will be charged to 1 EE Buyer b Esko reserves the right to use electronic invoicing methods b Esko Buyer consents to the use of such electronic invoicing methods In case of electronic invoicing Buyer shall be responsible to provide Esko with a correct e mail address to which the Esko electronic invoices should be Sent Buyer shall be liable for the 2 non receipt
22. of the electronic invoice due to non notified change of e mail address technical faults spam filters or oversized 0 IA 2 0 mailbox The electronic invoice shall be deemed to be received on the same day as the sent date c Buyer will pay all invoices 30 days after the month end of c 30 delivery Payments will be in the same currency as indicated in the invoice Any taxes will be indicated on the invoice d Esko will invoice Buyer 100 upon delivery 9 Esko 100 In Case of purchase of Perpetual Software Licenses as further defined by the applicable EULA Esko reserves the right EULA E k to provide Buyer with temporary licenses that expire after a OR
23. Buyer may reduest modification of the purchase price for the non conforming Products or a refund for the non conforming i 3 Esko MM and 0 SS Oe order that cannot be used without the non conforming Products 6 6 Price invoicing and Payment a
24. RDLESS OF LEGAL THEORY WILL NOT EXCEEDTHE PRICE OF THE PRODUCT GIVING RISE TO THE CLAIM FOR THE AVOIDANCE OF DOUBT ESKO WILL NOT BE LIABLE FOR LOSS OF OR DAMAGE TO BUYER S HARDWARE SOFTWARE SYSTEMS DATA PROGRAMS OR THE LIKE BUYER WILL MAINTAIN APPROPRIATE BACKUP COPIES AND IMPLEMENT OTHER PRACTICES TO SAFEGUARD ITS INFORMATION 11 Esko ii Esko
25. cal information disclosed by one party to another Each party agrees that in the event a party is exposed to the other party s Confidential Information the receiving party i will protect Confidential Information from unauthorized disclosure usind commercially reasonable care ii will not disclose Confidential Information to any third party provided that Esko may disclose Buyer s Confidential Information to any of its affiliates or to any vendor as necessary for the provision of Products which disclosure will be subject to confidentiality obligations with such party consistent with these Terms and iii will not use Confidential Information other than as authorized by these Terms without the prior written consent of the other party Within five 5 business days after a request by either party or upon termination of the Purchase Agreement all materials or media containing any Confidential Information will be either returned to the originating party or destroyed by the receivind party The preceding destruction provision will not apply to back up Copies of Buyer s Confidential Information made by Esko in the ordinary course of its provision of the Products provided that Esko will remain bound by its confidentiality obligations hereunder for so long as it retains such back up copies Confidential Information does not include information which i was already known to the receiving party prior to the time that it is disclosed to the recei
26. ced products and parts will be Esko s property 17 CP i 17 Maintenance and Repair Services CP Services do not COver services reduired as a result of CP Equipment i used or maintained by Buyer improperly or otherwise not in compliance 1 Esko Esko with any Purchase Agreement ii that requires refurbishment ii modified repaired maintained or serviced by anyone other 0 DY 6 9 than Esko or without Esko s written approval except as iv otherwise permitted in a Purchase Agreement iv subjected to unusual physical or electrical stress including without limitation accident n
27. d between 9am 5pm local time for on site and telephone support or other times provided by Esko as these support hours may vary by region Standard Support Hours Esko will make reasonable efforts to provide CP Services outside of its Standard Support Hours subject to Esko s then current standard rates When indicated in the order document for term based software licenses the price paid by Buyer includes standard support and updates to the software 14 CP Esko 60 Esko CP CP Esko Esko 15
28. d in accordance with the laws of the country and state or other applicable geographic designation where Esko is located without reference to its conflicts of law principles Each party hereby consents to the exclusive personal jurisdiction and venue of these courts However Esko may bring an action before the courts of the country where Buyer is located if the action concerns the collection of a pecuniary debt or protection or enforcement of Esko s intellectual property rights The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from application to any Purchase Agreement i Buyer is fully responsible for the accuracy of the data provided to Esko Buyer is also fully responsible for any act or omission including any order placed by Buyer s employees affiliates agents representatives and associated companies k Gi PantoneLIVE KZ kRV gt The following additional terms will also apply to any Care Package Buyer purchases and control in the event of any conflict
29. e export and re export restrictions and regulations d Esko reserves the right to change or modify the design or construction of the Products prior to delivery provided that such change or modification does not materially affect the form or 9 Esko function of the Products 3 3 Software All software Products including without limitation Esko Software incorporated in Esko s hardware and updates and updrades to software are licensed to Buyer and subject to Esko s End User License Agreement attached here or otherwise Eat CS Esk available at www esko com termsandconditions EULA Al A eo LAA SGML 1 Fsko hosted software services are available to Buyer and subject to EULA
30. eglect misuse failure of electrical power air V 14 conditioning humidity control transportation or any other cause CP other than normal wear and tear or V moved other than in Esko CP SCcordance with Article 14 Esko may terminate the Care CP Package covering CP Equipment affected by any of the foregoing 18 18 Renewal Care Packages will automatically renew for 30 1 subsequent 1 year terms unless terminated by either party upon Esko at least 30 days notice prior to the end of the then current term rd eo 3 Esko may update pricing for each renewal term provided it SC 6 45
31. l of its users comply with all instructions and restrictions in any Documentation 5 5 Product Acceptance Testing a RS b PAD IM Esko 8 0 5 Esko 5 5 0 i 0 c
32. ng is required Products will be considered accepted upon the earliest of i Buyer s acknowledgement of acceptance ii 5 business days after delivery of Products to Buyer or 5 business days after installation if Esko is required to install unless Buyer acting reasonably provides written notice of rejection including reasons for rejection within such 5 days Or iii Buyer s commercial use of the Products c lf Testing is required but not detailed in any Purchase Agreement the following procedures will be followed to the extent applicable i Esko will test the Products promptly after installation to verify they are free of defects and materially conform to all applicable technical specifications published by Esko or agreed to in writing by Esko Specifications Testing Upon successful completion of Testing Esko will submit an acknowledgement form indicating successful completion of testing for Buyer s signature Buyer shall sign such form within 3 business days after receipt or notify Esko in writing in detail of any material non conformance of the Products Acceptance will be deemed provided if Buyer fails to timely respond as required herein i Esko will promptly address any material non conformance of the Products and the foregoing Testing procedure will be repeated until successful completion of Testing ii If Products fail to materially conform to the Specifications after 3 rounds of Testing due to the fault of Esko
33. onsidered a waliver of any right therein lf any term is declared invalid or unenforceable to any extent the remainder of the terms or conditions will not be affected thereby Buyer agrees that any Buyer claim arising out of or related to any Purchase Agreement must be brought within one 1 year after the date it first 9
34. urchase Agreement Services shall mean training installation repair maintenance support and any other services provided to Buyer by Esko including services provided under a Care Package Purchase Agreements shall mean these Terms all documents and agreements referenced herein or including these Terms by reference and all other documents and agreements expressly Esko adreed upon by both parties regarding the provision of Products 02 a i by Esko to Buyer which may include without limitation Esko 50 Ra aa E A 2 quotations proposals SOWs Specifications Documentation 2 0 2 1 2 5 accompanying Products EULA and SaaS Agreement Unless otherwise expressly provided in a Purchase Agreement no other terms and conditions apply including any terms and
35. ving party as evidenced in writing and without a duty of confidentiality ii is or has entered the public domain through no breach of these Terms or other wrongful act of the receiving party ii has been rightfully received from a third party without breach of any duty of confidentiality iv has been approved for release by written authorization of the disclosing party or v is required to be disclosed pursuant to the order of a court or governmental agency provided the disclosing party has if permitted by law been given reasonable notice of the order and the opportunity to contest disclosure 12 12 Miscellaneous a Esko a The parties acknowledge and agree that Esko s ability to Esko b Esko
36. with a foregoing term The following terms shall not apply to i any third party hardware or ii any PantoneLIVE hardware and software products 13 Esko CP 9 5 Esko a Esko Esko CP EN 13 Standard Support Hours Esko will provide Services reduired under a Care Package CP Services Monday through Friday excluding local holidays an
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