Terms and Conditions

General Terms & Conditions of Sale for Products

If you purchase products from Aquaporin, your signed agreement shall be applicable. In the absence of a specific agreement, the General Terms and Conditions of Sale for Products shall apply to all products except for forward osmosis systems purchased from Aquaporin.

General Terms & Conditions of Sale for Systems

If you purchase forward osmosis systems from Aquaporin and have not signed any specific agreement, the General Terms and Conditions of Sale for Systems shall apply.

General Terms & Conditions of Sale for Laboratory Scale Units

Your purchase of laboratory scale units from Aquaporin shall be governed by the General Terms and Conditions of Sale for Laboratory Scale Units, in case no specific agreement is signed.

General Terms & Conditions for Free or Discounted Samples

If you order a product sample from Aquaporin, the General Terms and Conditions for Free or Discounted Samples shall apply.

Limited Warranty

The Limited Warranty provided by Aquaporin varies depending on the type of product. Please select your product type and its applicable Limited Warranty below.

Please find our General Terms and Conditions and Limited Warranties provided below.

General Terms and Conditions of Sale for Products

1. Applicability. Definitions

1.1. Unless otherwise explicitly agreed in writing between the Parties, these General Terms and Conditions of Sale detailed herein (the “GTCS”) shall apply to all sales of Products by Aquaporin A/S, Nymøllevej 78, 2800 Kongens Lyngby, Denmark, Danish CVR No. 28315694, or any of its affiliates (“AQP”) to its customers (“Customer”). AQP and Customer may be referred to herein collectively as the “Parties” and each individually as a “Party”.

1.2. “Products” shall mean the products as has been listed in a sales quote or order confirmation issued by AQP.

1.3. Any terms or conditions submitted by Customer to AQP which are inconsistent with, different than, or additional to these GTCS are hereby rejected by AQP, unless otherwise explicitly agreed in writing between the Parties.

1.4. These GTCS shall apply if reference has been made to them, unless otherwise explicitly agreed in writing between the Parties.

2. Orders. Formation of Agreement

2.1. All sales quotes made by AQP shall be open for acceptance within thirty (30) calendar days from the date of issue, unless otherwise specifically stated therein or agreed in writing between the Parties.

2.2. All orders issued by Customer shall specify, as a minimum, relevant Products, quantity, applicable unit prices, delivery place and requested delivery dates, if any.

2.3. Customer shall send its orders for Products via email to sales@aquaporin.com. AQP shall, within seven (7) Business Days after receipt of an order, notify Customer of its acceptance or rejection of such order and, if accepted, of the estimated date of delivery. “Business Day” shall mean a business day on which AQP and Customer are open, but excluding Saturdays, Sundays and days on which commercial banks in the countries of AQP and Customer are closed.

2.4. A binding individual agreement for the sale of Products (“Agreement”) shall be deemed to exist only when AQP has confirmed an order in writing. If any discrepancies occur in AQP’s order confirmation, Customer shall immediately notify AQP hereof. Otherwise, AQP’s order confirmation shall be deemed accepted by Customer.

3. Prices and Terms of Payment

3.1. All sales of Products to Customer shall be made at the prices set forth in AQP’s sales quote. Unless otherwise stated in an applicable sales quote, all prices quoted by AQP are net prices, for delivery EXW, AQP’s warehouse (Incoterms® 2020), exclusive of taxes and duties.

3.2. Prices shall be based on the raw material prices, subsidies, rates of exchange, customs tariffs, etc. in force on the date of the sales quote. In the event of material changes to such raw material prices, subsidies, rates, tariffs, etc. AQP reserves the right to adjust and change the prices and, by that, an Agreement accordingly.

3.3. Unless otherwise stated in an applicable sales quote, all payments to AQP shall be made in DKK against invoice within thirty (30) calendar days from invoice date without offset or deduction. Payment shall not be deemed to have been effected before AQP’s account has been fully and irrevocably credited.

3.4. In the event that Customer is granted a credit, AQP may require Customer to provide appropriate security for such credit on terms approved by AQP.

3.5. Any amounts required to be paid by Customer to AQP hereunder which are overdue, shall be subject to a default interest as from the due date until the date of receipt of payment at the rate of 2% per month. In addition hereto, AQP may, after having notified Customer in writing, stop shipments of Products and otherwise suspend its performance of an Agreement until it receives payment.

3.6. To the extent permitted by applicable law, the title to Products shall remain vested in AQP, and shall not pass to Customer, until Customer has paid for Products in full.

4. Delivery

4.1. Unless otherwise stated in an applicable sales quote or order confirmation, all deliveries of Products shall be made on delivery terms EXW, AQP’s warehouse (Incoterms® 2020). The passing of risk in Products shall be regulated in accordance with the said delivery term.

4.2. AQP shall endeavour to deliver Products on the date of delivery notified by AQP in its acceptance of a submitted order (cf. section 2.3). If AQP anticipates that it will not be able to deliver Products on the said date, AQP shall forthwith notify Customer hereof, stating the reason for the delay and, if possible, provide Customer with a new estimated date of delivery.

4.3. AQP’s compliance with the delivery date is conditional upon Customer’s fulfilment of its own contractual obligations, including but not limited to AQP’s punctual receipt from Customer of specifications, documentation, permissions and advance payments (if applicable). If Customer fails such fulfilment, the delivery date
shall be extended accordingly.

4.4. If AQP fails to deliver Products within fourteen (14) Business Days of a delivery date specified in a revised order confirmation (cf. section 4.2) and does not inform Customer of the delay, Customer may terminate an applicable Agreement in whole or in part (as to those Products affected by the delay) by providing written notice of termination to AQP within seven (7) Business Days of the expiration of the grace period.

4.5. If Customer fails to collect Products at the agreed date of delivery, AQP shall arrange for storage of Products at the risk and expense of Customer until actual delivery or cancel an Agreement or any part thereof, in either case without prejudice to any other right or remedy available to AQP. AQP shall, however, provide Customer with fourteen (14) Business Days advance notification of
its decision.

4.6. AQP reserves the right to make delivery in instalments. Each instalment shall be regarded as fulfillment of a separate and independent Agreement.

5. Acceptance of Products

5.1. Customer shall inspect Products delivered upon receipt. Customer is deemed to have accepted Products delivered, unless written notice of rejection specifying the reasons for rejection is received by AQP within five (5) Business Days after delivery of Products. The foregoing only applies to defects reasonably discoverable without opening individual packaging of Products.

6. Limited Warranty

6.1. The warranty given by AQP, during the Warranty Period, is specified in the limited warranty policy relevant for each Product (the “Limited Warranty”). The Limited Warranty includes, but is not limited to the scope, AQP’s obligations and the Customer’s remedies, exclusions and limitations.

6.2. “Warranty Period” means the period of time during which the warranty applies, and which period varies depending on the type of Product and is specified in the Limited Warranty.

6.3. THE WARRANTY SET FORTH IN THIS SECTION 6 IS THE ONLY WARRANTY APPLICABLE BETWEEN THE PARTIES WITH RESPECT TO PRODUCTS AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQP DISCLAIMS AND EXCLUDES ALL WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

7. Product Liability

7.1. In the event any third party claims, suits or actions are brought against Customer during the Warranty Period, alleging bodily injury (including death) or damage to property caused by defects in Products, AQP agrees to indemnify and hold Customer harmless for any and all claims, costs, damages, expenses (including the reasonable fees of attorneys and other professionals), liabilities and other responsibilities incurred or sustained Customer, provided that:

  1. the defect is attributable to the negligence of AQP and existed at the time Product was delivered by AQP to Customer and, consequently, is not attributable to (i) an accident, (ii) faulty and/or improper use, installation, maintenance, service, repair or alteration contrary to AQP’s technical specifications, documentation or written instructions, (iii) normal wear and tear or deterioration, (iv) improper environmental conditions (including, but not limited to, electrical surges, water damage, and heat exposure), (v) the negligence of Customer or any third party, or (vi) lack of responsible care;
  2. no Product or label modifications have been made;
  3. Customer is liable for such bodily injury or property damage under the relevant laws; and
  4. Customer promptly notifies AQP in writing of any notice or claim of such injury or damage and of the commencement of any suit or action for injury or damage received by or brought against Customer.

7.2. AQP shall have the right, but not be obligated to, assume the defence of any claim made in accordance with section 7.1 at AQP’s own cost and expense and Customer shall in such case, at AQP’s cost and expense, provide such information, cooperation, and assistance to AQP as may be reasonably necessary to assist AQP in its defence against any such claim. Customer may not settle or otherwise enter into any agreement with any claimant, nor make any admission which may be prejudicial to the interest of AQP, without AQP’s prior written consent.

7.3. Notwithstanding anything to the contrary in an Agreement, the liability of AQP under this section 7 shall only apply and be limited to what is payable from the product liability insurance taken out and maintained by AQP.

7.4. THE FOREGOING PROVISIONS OF THIS SECTION 7 SET FORTH THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF AQP AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS SUITS, OR ACTIONS RELATED TO BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE.

8. Indemnification by Customer

8.1. Customer shall be fully liable for, and shall keep AQP indemnified and held harmless against any and all losses, claims, liabilities, damages, costs and expenses (including the reasonable fees of attorneys and other professionals) of every nature and kind incurred or sustained by AQP or otherwise arising out of or relating to Customer’s sale, promotion and marketing of Products, including any misrepresentations or false statements made by Customer to its customers regarding Products. In addition hereto, should Customer, by act or omission, be in breach of an Agreement, Customer shall assume full liability for any loss or damage incurred by AQP as a result of such breach by Customer.

8.2. The indemnity shall apply regardless of where the occurrence giving rise to the claim took place or where the claim is asserted. AQP shall give Customer notice of any claim and of any legal proceedings within the scope of the indemnity and shall give Customer the right to conduct the negotiations of any such claim and the defence of any such legal proceeding, subject to the right of AQP to be associated with such negotiation or defence.

9. Intellectual Property Rights

9.1. “Intellectual Property Rights” or “IPR” shall mean any and all patents, copyrights, rights in databases/database rights, design rights, registered designs, technical information, know how,
trademarks, domain names, applications for any of the foregoing, sui generis rights, moral rights, and other industrial, proprietary property and/or intellectual property rights, in each case whether registered or unregistered and including the right to apply for registration of the same wherever subsisting in the world and such other similar protected rights in any country and any licenses under or in respect of such rights and including the exclusive right to do and to authorize others to do any and all acts in relation to such rights throughout the world including the right to claim damages for conversion in respect of any infringing works.

9.2. Customer recognises AQP’s right, title and interest in and to the IPR relating to Products and any documentation and drawings provided by AQP in conjunction with a sale or delivery of any Products. Any documentation or drawings provided by AQP to Customer shall not be used for any other purpose than that for which they were provided and may not without the prior written
consent of AQP otherwise be used or copied, reproduced, transmitted or communicated to third parties.

10. IPR Infringement

10.1. If any Product as delivered hereunder is held to infringe a third party’s IPR and Customer is enjoined from using same, AQP may, at its expense and option, (a) modify Product without impairing in any respect the functionality, capacity or performance, so that it is non-infringing; (b) procure for Customer the right to continue to use and sell Product; or (c) refund the purchase price of Products less a reasonable amount for usage.

10.2. THE FOREGOING PROVISIONS OF THIS SECTION 10 SET FORTH THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF AQP AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.

11. Limitation of Liability

11.1. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 12 “CONFIDENTIALITY” AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 “INDEMNIFICATION BY CUSTOMER” AND SECTION 9 “INTELLECTUAL PROPERTY RIGHTS”, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR UNDER ANY OTHER LEGAL THEORY, SHALL EITHER PARTY WITH RESPECT TO ANY MATTERS RELATING TO AN AGREEMENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. THIS LIMITATION SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER ANY WARRANTY AND/OR THE TERMS AND CONDITIONS OF AN AGREEMENT.

11.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN AN AGREEMENT, AQP’s TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM AN AGREEMENT SHALL BE LIMITED TO AND IN NO CASE EXCEED THE AMOUNT CUSTOMER HAS PAID FOR PRODUCTS IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

11.3. The foregoing limitations shall not apply in case of gross negligence or wilful misconduct of the defaulting Party.

12. Confidentiality

12.1. Each Party undertakes, and shall cause all officers, employees and other persons concerned by an order or Agreement to undertake, to keep secret all information received from the other Party and not to use the same except to the extent necessary to fulfil its rights and obligations under an order or Agreement.

13. Relief

13.1. Each Party shall be excused from performing of one or more of its obligations under an Agreement, if and to the extent that the affected Party proves: (a) that the occurrence of an event or circumstance that prevents or impedes a Party from performing one or more of its obligations under an Agreement is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of an Agreement; and (c)
that the effects of the impediment could not reasonably have been avoided or overcome by the affected Party.

13.2. In the absence of proof to the contrary, the following events affecting a Party shall be presumed to fulfil conditions (a) and (b) under section 13.1: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether
lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy, supply shortages by sub-contractors; (vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.

13.3. A Party successfully invoking this section 13 is relieved from its duty to perform its obligations under an Agreement and from any liability in damages or from any other contractual remedy for breach of an Agreement, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other Party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected Party. Where the duration of the impediment invoked has the effect of substantially depriving the Parties of what they were reasonably entitled to expect under an Agreement, either Party has the right to terminate an Agreement by notification within a reasonable period to the other Party. Unless otherwise agreed, the Parties expressly agree that an Agreement may be terminated by either Party, if the duration of the impediment exceeds one hundred twenty (120) calendar days.

14. Publicity

14.1. No press release or public announcement of any kind, nor issuing of any promotional material, relating to an order or an Agreement or its contents shall be made by Customer without AQP’s written approval.

15. Assignment

15.1. Neither Party may without written approval of the other assign an Agreement or transfer its interest or any part thereof under an Agreement to any third party except that AQP may assign its rights or obligations to a third party in connection with the merger, reorganization or acquisition of stock or assets affecting all or substantially all of the properties or assets of AQP.

16. Miscellaneous

16.1. No waiver by AQP of any breach by Customer, or failure by AQP to insist on Customer’s performance of obligations shall be considered a waiver of any subsequent breach of the same or any other provision.

16.2. Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.

16.3. Nothing in the relationship between AQP and Customer shall create an agency, partnership or joint venture between the Parties and in specific Customer shall not be entitled to make any representation or warranty on behalf of AQP.

16.4. Additional Agreements, provisions, amendments and supplements to these GTCS shall not be valid, unless made in writing and signed by both Parties.

17. Governing Law and Arbitration

17.1. These GTCS and all Agreements shall be governed and construed in accordance with the laws of Denmark without regard to the provisions of the United Nations Convention on Contracts for the International Sale of Goods.

17.2. Any and all disputes between the Parties arising out of or in connection with these GTCS and all Agreements or the breach, termination or invalidity thereof shall – in the absence of an amicable solution to the dispute – be finally settled by Arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Voldgiftsinstituttet). The arbitration tribunal shall be composed of one arbitrator selected and appointed by the institute. The Place of Arbitration shall be Copenhagen. The language of the proceedings shall be Danish, unless the Parties agree to English or any third language. Such arbitrations proceedings including any evidence exchanges as well as the contents of any award shall be confidential.

Last updated: July 2023

Aquaporin Inside® Reverse Osmosis Membrane Elements (CLEAR and DWRO®)

Three-Year Prorated Limited Warranty for Aquaporin Inside® Reverse Osmosis Membrane Element(s)

Aquaporin A/S (“Aquaporin”) provides a limited warranty (the “Warranty”) to the original purchaser covering materials, workmanship and performance of Aquaporin Inside® reverse osmosis membrane elements (the “RO Element(s)”) under the following terms and conditions:

1. Materials and Workmanship Warranty (the “Materials and Workmanship Warranty”)

1.1. Aquaporin warrants that the RO Element(s), under substantiated normal use, (i) will be free from defects in materials and workmanship; and (ii) will conform to the specifications relevant for the RO Element(s). This Materials and Workmanship Warranty shall be effective for twelve (12) months from the date of shipment from Aquaporin’s warehouse to the original purchaser (the “Materials and Workmanship Warranty Period”).

1.2. The original purchaser shall without undue delay notify Aquaporin of any defect that appears in the RO Element(s). Failure to notify Aquaporin of said defect, within thirty (30) calendar days from the date on which the defect is noticed or could have been noticed, shall mean that the original purchaser loses the right to have the defect remedied. A valid form of bill of sale or receipt, substantiating the purchase and the date thereof, must be presented to Aquaporin within the Materials and Workmanship Warranty Period to obtain warranty service.

2. Initial Performance Warranty (the “Initial Performance Warranty”)

2.1. Aquaporin warrants that the RO Element(s) have the initial minimum product flow rate and initial minimum salt rejection under standard test conditions as specified in the datasheets relevant for each RO Element, until the first to occur of:

    1. First Use;
    2. six (6) months after the date of delivery.

2.2 If the provision of section 2.1a applies, the Initial Performance Warranty shall be deemed void if the original purchaser does not notify Aquaporin in writing of the RO Element(s) failure within thirty (30) calendar days after the First Use. Together with such notification a valid document, substantiating the installation and the date thereof, must be presented to Aquaporin. “First Use” means the first time that feed water is introduced to the RO Element(s).

2.3. If the provision of section 2.1b applies, the Initial Performance Warranty shall be deemed void if the original purchaser does not notify Aquaporin in writing of the RO Element(s) failure within thirty (30) calendar days following six (6) months after the date of delivery. Together with such notification a valid document, substantiating the delivery and the date thereof, must be presented to Aquaporin.

3. Prorated Performance Warranty (the “Prorated Performance Warranty”)

3.1. During the Prorated Performance Warranty Period defined in section 4 below when operated under standard conditions, Aquaporin warrants performance of the RO Element(s) as follows:

    1. permeate flow rate shall remain at or above 70% of the minimum product flow rate as specified in the datasheets relevant for each RO Element;
    2. maximum salt passage shall not exceed 1.5x of the maximum salt passage specified in the datasheets relevant for each RO Element. [Maximum salt passage = (1 – minimum salt rejection) x100].

4. Prorated Performance Warranty Period

4.1. The Prorated Performance Warranty applies for three (3) years from whichever of the following events occurs first (the “Prorated Performance Warranty Period”):

  • (1) For DRY RO Element(s):
    1. upon First Use;
    2. twelve (12) months from the date of shipment of the original RO Element(s) from Aquaporin’s warehouse to the original purchaser.
  • (2) For WET RO Element(s):
    1. upon First Use;
    2. six (6) months from the date of shipment of the original RO Element(s) from Aquaporin’s warehouse to the original purchaser.

5. Prorated Performance Warranty Conditions

5.1. The Prorated Performance Warranty set forth in section 3 above shall be rendered null and void if any of the following conditions are not respected or met:

    1. The RO Element(s) shall not be used in food and dairy applications, residential, sulfate removal and specialty applications.
    2. The RO Element(s) shall be operated within the operating conditions and recommendations described in Aquaporin Inside® Industrial RO Element User Manual. Operating conditions of the RO Element(s) must not exceed the operating limits as specified in the datasheets relevant for each RO Element.
    3. The design parameters including system array and recovery, instrumentation and components of the system in which the RO Element(s) are employed shall be consistent with sound engineering practice. Aquaporin reserves the right to review the system design; provided Aquaporin shall not guarantee the system design, whether or not Aquaporin exercises such right of design review.
    4. The original purchaser shall ensure that frequent and adequate system performance data are routinely recorded, reviewed, filed and documented in a systematic form from initial system start-up. Operation data such as troubleshooting, maintenance, operation time and chemical dosage shall also be recorded. These data must be made available to Aquaporin upon request in case of a warranty claim.
    5. The RO Element(s) must not be fouled by any kind of precipitates, suspended solids, organic matters, inorganic scale, chemicals, or biological growth influencing the RO Element performance negatively. The feed water entering the RO Element(s) must not contain oil, grease, or other foreign organic or inorganic materials detrimental to the RO Element(s). The feed water to the RO Element(s) must not contain strong oxidizing agents such as active chlorine and ozone proven to be harmful to the RO Element(s)’s performance and operating lifetime.
    6. Neither nonionic nor cationic surfactants, as well as coagulant, should be used for the membrane cleaning or come into contact with the RO Element(s).
    7. The RO Element(s) shall be protected against any shocks such as load shocks, vibrations, pulsation, air or water hammers at all times during start-up, normal operation and cleaning. Back pressure, where permeate line static pressure exceeds feed water side static pressure, shall not exceed 0.3 bar at all times, particularly not at normal operating period.
    8. In case of system performance decline (permeate flow, salt rejection or pressure drop), appropriate countermeasures must be performed in a reasonable time.
    9. The original purchaser is responsible for providing the end-user with adequate manuals for system operation and maintenance, as well as training of the operators and supervisors, ensuring end-user's ability to perform cleaning, performance restoration, diagnostic and troubleshooting procedures.
    10. Prior to installation and use, the RO Element(s) shall be stored in their original shipping bag and containers, shall not be exposed to direct sunlight, and shall not be exposed to an ambient air temperature greater than 35 ̊C (95  ̊F) or below 0  ̊C (32  ̊F).

6. Aquaporin’s Obligations and Remedy of the Original Purchase

6.1. For breach of Materials and Workmanship Warranty and Initial Performance Warranty

6.1.1. The sole remedy of the original purchaser and Aquaporin’s (including those affiliates involved in the distribution and sale of the RO Element(s)) exclusive liability under the Materials and Workmanship Warranty and the Initial Performance Warranty shall be limited to the repair, or at Aquaporin’s discretion, replacement of any RO Element(s), which is/are determined, after examination, to be defective under this provision.

6.1.2. Aquaporin may request for the return of defective RO Element(s) for the purpose of such examination. The original purchaser shall handle the returns and replacements of defective RO Element(s) in accordance with the instructions given by Aquaporin. Upon Aquaporin’s confirmation of breach of the Warranty, all shipping costs related to the replacement of the RO Element(s) will be paid by Aquaporin.

6.1.3. Repaired RO Element(s) or replacement RO Element(s) will be warranted under the terms set forth herein for the remainder of the original Materials and Workmanship Warranty Period or six (6) months, whichever is longer. When the RO Element(s) are replaced, all products that are replaced shall become the property of Aquaporin.

6.2. For breach of Prorated Performance Warranty

6.2.1. If Aquaporin determines that the warranty claim is valid, the sole remedy of the original purchaser and Aquaporin’s (including those affiliates involved in the distribution and sale of the RO Element(s)) exclusive liability under the Prorated Performance Warranty is limited to credit 1/36 of the original purchase price of the RO Element(s) for each unused month of the Prorated Performance Warranty Period towards the purchase of a replacement RO Element at the current prevailing price, excluding customs, taxes, levies, fees, installation work etc.

6.2.2. Aquaporin’s liability shall be limited to the extent that the total number of RO Element(s) supplied for replacement will be less than or equal to the number of initial RO Element(s) purchased.

6.2.3. Aquaporin may, at its discretion:

      1. dispatch its expert and/or outside expert for on-site examination; or
      2. request the original purchaser return of the alleged defective RO Element(s) to Aquaporin freight prepaid for examination.

6.2.4. In case the result of such examination shows that (i) the failure of the RO Element(s) performance is due to a cause other than breach of the Prorated Performance Warranty, or (ii) the performance of the alleged defective RO Element(s) meets the Prorated Performance Warranty, the original purchaser shall pay to Aquaporin a fee of EUR 1,000 per calendar day, plus all direct expenses incurred by Aquaporin’s personnel in connection with any inspection and testing of such RO Element(s). Further, Aquaporin may return such alleged defective RO Element(s) to original purchaser freight collect.

7. General Exclusions and Limitations

7.1. This Warranty is contingent upon proper warehousing, shipment and substantiated normal use of the RO Element(s), and specifically does not apply if the RO Element(s) have had the serial or lot number altered, defaced or removed, or to defects attributable to (i) modifications to or alterations of the RO Element(s) by any party other than Aquaporin, (ii) faulty maintenance, incorrect installation or faulty repair by any party other than Aquaporin, (iii) use of the RO Element(s) for a purpose for which it was not designed or intended, (iv) normal wear and tear or deterioration, or (v) misuse, abuse, negligence or accidents.

7.2. This Warranty does not apply to RO Element(s) where Aquaporin has disclaimed the warranty obligation pertaining to the RO Element(s). Also, the Warranty only applies to RO Element(s) purchased from an authorized distributor/reseller.

8. Warranty Claim Procedure and Unauthorized Returns

8.1. The warranty service is subject to Aquaporin's examination and approval. To the extent the original purchaser desires to institute a warranty claim, it shall follow the claim procedure provided by Aquaporin.

8.2. Before returning any RO Element(s) to Aquaporin for any warranty examination, Aquaporin must be contacted to obtain permission to return the RO Element(s). For more information, please contact support@aquaporin.com. Any RO Element(s) shipped to Aquaporin or any of its affiliates without permission will be returned to shipper unopened, freight collected.

9. Important Reminders

9.1. When antiscalant is used, its compatibility with the RO Element(s) must be confirmed by the antiscalant manufacturer.

9.2. Permeate obtained from the first hour of operation should be discharged.

9.3. The RO Element(s) must be under normal operation for at least twenty-four (24) hours before formaldehyde is used as a biocide. If the RO Element(s) are exposed to formaldehyde before the lapse of this period, an irreversible severe loss in flux may result.

10. Disclaimer

10.1. THE WARRANTY PROVIDED ABOVE IS THE ONLY WARRANTY APPLICABLE BETWEEN AQUAPORIN’S DISTRIBUTOR/RESELLER AND AQUAPORIN WITH RESPECT TO THE RO ELEMENT(S) AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQUAPORIN DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES AS SET FORTH HEREIN. IF LAWS UNDER SUCH JURISDICTIONS APPLY, THEN ALL EXPRESS AND IMPLIED WARRANTIES ARE LIMITED TO THE WARRANTY PERIODS IDENTIFIED ABOVE, AND OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT AS PROVIDED IN THIS WRITTEN WARRANTY OR TO THE MINIMUM EXTENT REQUIRED BY MANDATORY LAW, NEITHER AQUAPORIN NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. AQUAPORIN’S TOTAL AND AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS WARRANTY SHALL BE LIMITED TO AND IN NO CASE EXCEED THE PRICE PAID FOR THE RO ELEMENT(S). THESE LIMITATIONS ON POTENTIAL LIABILITIES HAVE BEEN AN ESSENTIAL CONDITION IN SETTING THE RO ELEMENT PRICE.

11. Applicable Law and Applicability

11.1. This Warranty is governed by and construed under the laws of Denmark without regard to its conflicts of laws provisions.

11.2. This Warranty may be subject to Aquaporin’s change at any time without notice.

 

Last updated: July 2023

Aquaporin Inside® Reverse Osmosis Flat Sheet Membranes

Limited Warranty for Aquaporin Inside® Reverse Osmosis Flat Sheet Membrane

Aquaporin A/S (“Aquaporin”) provides a limited warranty (the “Warranty”) to the original purchaser covering materials, workmanship and initial performance of Aquaporin Inside® reverse osmosis flat sheet membrane (the “RO FS”) under the following terms and conditions:

1. Materials and Workmanship Warranty (the “Materials and Workmanship Warranty”)

1.1. Aquaporin warrants that the RO FS, under substantiated normal use, (i) will be free from defects in materials and manufacturing workmanship that would prevent the RO FS from being used for the intended purpose; and (ii) will conform to the specifications relevant for the RO FS. This Materials and Workmanship Warranty shall be effective for six (6) months from the date of delivery to a carrier at a shipping point (the “Materials and Workmanship Warranty Period”).

1.2. The original purchaser shall without undue delay notify Aquaporin of any defect that appears in the RO FS. Failure to notify Aquaporin of said defect, within thirty (30) calendar days from the date on which the defect is noticed or could have been noticed, shall mean that the original purchaser loses the right to have the defect remedied. A valid form of bill of sale or receipt, substantiating the purchase and the date thereof, must be presented to Aquaporin within the Materials and Workmanship Warranty Period to obtain warranty service.

2. Initial Performance Warranty (the “Initial Performance Warranty”)

2.1. Aquaporin warrants that, after stabilization, the RO FS will meet the initial minimum water flux and salt rejection under standard test conditions as specified in the product specifications, until the first to occur of:

  1. first use in element manufacturing; or
  2. six (6) months after the date of delivery to a carrier
    at a shipping point.

2.2. If the provision of clause 2.1a applies, the Initial Performance Warranty shall be deemed void if the original purchaser does not notify Aquaporin in writing of the RO FS failure within thirty (30) calendar days after the first day of use of the RO FS in the element manufacturing. Together with such notification a valid document, substantiating the element manufacturing and the date thereof, must be presented to Aquaporin.

2.3. If the provision of clause 2.1b applies, the Initial Performance Warranty shall be deemed void if the original purchaser does not notify Aquaporin in writing of the RO FS failure within thirty (30) calendar days following six (6) months after the date of delivery to a carrier at a shipping point. Together with such notification a valid document, substantiating the delivery and the date thereof, must be presented to Aquaporin.

2.4. Aquaporin does not warrant initial discoloration of permeate water during initial flushing. Upon startup, the permeate water output during the initial first hour of operation for flushing may exhibit discoloration and should be discarded.

2.5. Failure or refusal to disclose to Aquaporin the use and testing parameters of the RO FS in the event of failure of performance shall render the Initial Performance Warranty null and void.

3. Aquaporin’s Obligations and Remedy of the Original Purchaser

3.1. For breach of the Materials and Workmanship Warranty and Initial Performance Warranty the sole remedy of the original purchaser and Aquaporin’s (including those affiliates involved in the distribution and sale of the RO FS) exclusive liability is limited to replacement of the RO FS, which is determined to be defective after examination. Aquaporin may request to return the defective RO FS for the purpose of such examination. The original purchaser shall handle the returns and replacements of defective RO FS in accordance with the instructions given by Aquaporin. Upon Aquaporin’s confirmation of breach of the Warranty, all shipping costs related to the replacement of the RO FS will be paid by Aquaporin.

3.2. Replacement RO FS will be warranted under the terms set forth herein for the remainder of (i) the original Materials and Workmanship Warranty Period, (ii) the original Initial Performance Warranty Period or (iii) three (3) months, whichever is longer.

4. Exclusions and Limitations

4.1. This Warranty is contingent upon proper warehousing, shipment and substantiated normal use of the RO FS, as set forth in Appendix A “Storage, Shipping and Handling Conditions”. This Warranty specifically does not apply if the RO FS have had the serial or lot number altered, defaced or removed, or to defects attributable to (i) modifications to or alterations of the RO FS by any party other than Aquaporin, (ii) faulty maintenance, incorrect installation or faulty repair by any party other than Aquaporin, (iii) use of the RO FS for a purpose for which it was not designed or intended, (iv) normal wear and tear or deterioration, (v) misuse, abuse, negligence or accidents.

4.2. This Warranty does not apply to the RO FS where Aquaporin has expressly disclaimed the warranty obligation pertaining to the RO FS. Also, the Warranty only applies to the RO FS purchased from an authorized distributor/reseller.

5. Warranty Claim Procedure and Unauthorized Returns

5.1. The warranty service is subject to Aquaporin's examination and approval. To the extent the original purchaser desires to institute a warranty claim, it shall follow the claim procedure provided by Aquaporin.

5.2. Before returning any RO FS to Aquaporin for any warranty examination, Aquaporin must be contacted to obtain permission to return the RO FS. For more information, please contact support@aquaporin.com. Any RO FS shipped to Aquaporin or any of its affiliates without permission will be returned to shipper unopened, freight collected.

6. Disclaimer

6.1. THE WARRANTY PROVIDED ABOVE IS THE ONLY WARRANTY APPLICABLE BETWEEN AQUAPORIN’S DISTRIBUTOR/RESELLER AND AQUAPORIN WITH RESPECT TO THE RO FS AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQUAPORIN DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES AS SET FORTH HEREIN. IF LAWS UNDER SUCH JURISDICTIONS APPLY, THEN ALL EXPRESS AND IMPLIED WARRANTIES ARE LIMITED TO THE WARRANTY PERIODS IDENTIFIED ABOVE, AND OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT AS PROVIDED IN THIS WRITTEN WARRANTY OR TO THE MINIMUM EXTENT REQUIRED BY MANDATORY LAW, NEITHER AQUAPORIN NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. AQUAPORIN’S TOTAL AND AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS WARRANTY SHALL BE LIMITED TO AND IN NO CASE EXCEED THE PRICE PAID FOR THE RO FS. THESE LIMITATIONS ON POTENTIAL LIABILITIES HAVE BEEN AN ESSENTIAL CONDITION IN SETTING THE RO FS PRICE.

7. Applicable Law and Applicability

7.1. This Warranty is governed by and construed under the laws of Denmark without regard to its conflicts of laws provisions.

7.2. This Warranty may be subject to Aquaporin’s change at any time without notice.

 

Appendix A

Storage, Shipping and Handling Conditions

1. The RO FS must be stored under the following conditions at all times:

  • Wrapped in black plastic film and stored in a dark, dry
    place.
  • Storage area temperature maintained at 10 – 30°C, and humidity maintained at 50-70%.

2. During shipping, the RO FS must be transported under the following conditions at all times:

  • Recommended shipping method is air shipment or sea freight with a temperature control device.
  • Temperature during transportation maintained at < 40°C.
  • If transportation period exceeds two (2) months, temperature must be maintained at < 30°C.

3. During storage, transportation, handling and usage, the RO FS shall be kept away from:

  • Extrusion surfaces and sharp items that could damage the RO FS
  • Harsh chemicals that would affect the RO FS performance such as non-ionic or cationic surfactants, coagulants, organic solvents, oils, chlorine gas, ozone, potassium permanganate, hypochlorite ions and other oxidized substances.

4. To avoid damage, handle the RO FS roll with care. Avoid contacting the roll with sharp items, or putting the RO FS roll directly onto a surface/floor. To minimize the potential for contamination, handle the RO FS with clean hands or gloves.

Last updated: February 2024

Aquaporin Inside® Hollow Fiber Forward Osmosis Modules (HFFO®)

Limited Warranty for Aquaporin Inside® Hollow Fiber Forward Osmosis Modules

1. Warranty Coverage

1.1. Aquaporin A/S (“Aquaporin”) warrants the original purchaser that the Aquaporin Inside® hollow fiber forward osmosis modules (the “FO module(s)”) will be free from defects in workmanship and materials under normal use for a period of one (1) year from the date of shipment from Aquaporin’s warehouse, subject to the exclusions and limitations set out below (the “Warranty”).

1.2. The original purchaser shall without undue delay notify Aquaporin of any defect that appears in the FO Module(s). Failure to notify Aquaporin of said defect, within thirty (30) calendar days from the date on which the defect is noticed or could have been noticed, shall mean that the original purchaser loses the right to have the defect remedied. A valid form of bill of sale or receipt, substantiating the purchase and the date thereof, must be presented to Aquaporin within the warranty period, i.e., the period of time under

2. Aquaporin’s Liability and Remedy of the Original Purchaser

2.1. The sole remedy of the original purchaser and Aquaporin’s sole and exclusive liability shall be limited to replacement of the FO Module(s). Replacement products will be warranted under the terms set forth herein for the remainder of the original warranty period or ninety (90) calendar days, whichever is longer. When the FO Module(s) are replaced, all products that are replaced shall become the property of Aquaporin.

3. Exclusions and Limitations

3.1. This Warranty is contingent upon proper warehousing, shipment and substantiated normal use of the FO Module(s), and specifically does not apply if the FO Module(s) have had the model or serial number altered, defaced or removed, or to defects attributable to (i) modifications to or alterations of the FO Module(s) by any party other than Aquaporin, (ii) faulty maintenance, incorrect installation or faulty repair by any party other than Aquaporin, (iii) use of the FO Module(s) for a purpose for which they were not designed or intended, (iv) normal wear and tear or deterioration, or (v) misuse, abuse, negligence or accidents.

3.2. This Warranty does not apply to FO Module(s) where Aquaporin has disclaimed the warranty obligation pertaining to the FO Module(s). Also, the Warranty only applies to FO Module(s) purchased from an authorized distributor/reseller.

4. Warranty Claim Procedure and Unauthorized Returns

4.1. The warranty service is subject to Aquaporin's examination and approval. To the extent the original purchaser desires to institute a warranty claim, it shall follow the claim procedure provided by Aquaporin.

4.2. Before returning any FO Module(s) to Aquaporin for any warranty examination, Aquaporin must be contacted to obtain permission to return the FO Module(s). For more information, please contact support@aquaporin.com. Any FO Module(s) shipped to Aquaporin or any of its affiliates without permission will be returned to shipper unopened, freight collected.

5. Disclaimer

5.1. THE WARRANTY PROVIDED ABOVE IS THE ONLY WARRANTY APPLICABLE BETWEEN AQUAPORIN’S ORIGINAL PURCHASER AND AQUAPORIN WITH RESPECT TO THE FO MODULE(S) AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQUAPORIN DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES AS SET FORTH HEREIN. IF LAWS UNDER SUCH JURISDICTIONS APPLY, THEN ALL EXPRESS AND IMPLIED WARRANTIES ARE LIMITED TO THE WARRANTY PERIOD IDENTIFIED ABOVE, AND OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT AS PROVIDED IN THIS WRITTEN WARRANTY OR TO THE MINIMUM EXTENT REQUIRED BY MANDATORY LAW, NEITHER AQUAPORIN NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. AQUAPORIN’S TOTAL AND AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS WARRANTY SHALL BE LIMITED TO AND IN NO CASE EXCEED THE PRICE PAID FOR THE FO MODULE(S). THESE LIMITATIONS ON POTENTIAL LIABILITIES HAVE BEEN AN ESSENTIAL CONDITION IN SETTING THE FO MODULE(S) PRICE.

6. Applicable Law and Applicability

6.1. This Warranty is governed by and construed under the laws of Denmark without regard to its conflicts of laws provisions.

6.2. This Warranty may be subject to Aquaporin’s change at any time without notice.

Last updated: July 2023

Purifiers (A2O Pure, A2O Bar)

Limited Warranty for Purifier(s)

1. Warranty Coverage

1.1. Aquaporin A/S (“Aquaporin”) warrants the original purchaser (the distributor/reseller) that the Purifier(s) will be free from defects in design, workmanship and materials under normal use for a period of one (1) year from the date of shipment from Aquaporin’s warehouse, subject to the exclusions and limitations set out below (the “Warranty”). This Warranty is only applicable to the purifier(s) and accessories included with the Purifier(s) on the date of the original purchase (jointly the “Purifier(s)”).

1.2. The original purchaser shall without undue delay notify Aquaporin of any defect that appears in the Purifier(s). Failure to notify Aquaporin of said defect, within thirty (30) calendar days from the date on which the defect is noticed or could have been noticed, shall mean that the original purchaser loses the right to have the defect remedied. A valid form of bill of sale or receipt, substantiating the purchase and the date thereof, must be presented to Aquaporin within the warranty period, i.e., the period of time under which the Purifier(s) are covered by this Warranty, to obtain warranty service.

2. Aquaporin’s Liability and Remedy of the Original Purchaser

2.1. The sole remedy of the original purchaser and Aquaporin’s sole and exclusive liability shall be limited to, at Aquaporin’s sole discretion, either (i) repair of the Purifier(s) using new or refurbished replacement parts, or (ii) replacement of the Purifier(s). Repaired Purifier(s) or replacement products will be warranted under the terms set forth herein for the remainder of the original warranty period or ninety (90) calendar days, whichever is longer. When the Purifier(s) or part thereof are replaced, all products or parts thereof that are replaced shall become the property of Aquaporin.

3. Exclusions and Limitations

3.1. This Warranty is contingent upon proper warehousing, shipment and substantiated normal use of the Purifier(s), and specifically does not apply if the Purifier(s) has had the model or serial number altered, defaced or removed, or to defects attributable to (i) modifications to or alterations of the Purifier(s) by any party other than Aquaporin, (ii) faulty maintenance, incorrect installation or faulty repair by any party other than Aquaporin, (iii) use of the Purifier(s) for a purpose for which they were not designed or intended, (iv) normal wear and tear or deterioration, or (v) misuse, abuse, negligence or accidents.

3.2. This Warranty does not apply to Purifier(s) where Aquaporin has disclaimed the warranty obligation pertaining to the Purifier(s). Also, the Warranty only applies to Purifier(s) purchased from an authorized distributor/reseller.

4. Warranty Claim Procedure and Unauthorized Returns

4.1. The warranty service is subject to Aquaporin's examination and approval. To the extent the original purchaser desires to institute a warranty claim, it shall follow the claim procedure provided by Aquaporin.

4.2. Before returning any Purifier(s) to Aquaporin for any warranty examination, Aquaporin must be contacted to obtain permission to return the Purifier(s). For more information, please contact support@aquaporin.com. Any Purifier(s) shipped to Aquaporin or any of its affiliates without permission will be returned to shipper unopened, freight collected.

5. Disclaimer

5.1. THE WARRANTY PROVIDED ABOVE IS THE ONLY WARRANTY APPLICABLE BETWEEN AQUAPORIN’S DISTRIBUTOR/RESELLER AND AQUAPORIN WITH RESPECT TO THE PURIFIER(S) AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQUAPORIN DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES AS SET FORTH HEREIN. IF LAWS UNDER SUCH JURISDICTIONS APPLY, THEN ALL EXPRESS AND IMPLIED WARRANTIES ARE LIMITED TO THE WARRANTY PERIODS IDENTIFIED ABOVE, AND OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT AS PROVIDED IN THIS WRITTEN WARRANTY OR TO THE MINIMUM EXTENT REQUIRED BY MANDATORY LAW, NEITHER AQUAPORIN NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. AQUAPORIN’S TOTAL AND AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS WARRANTY SHALL BE LIMITED TO AND IN NO CASE EXCEED THE PRICE PAID FOR THE PURIFIER(S). THESE LIMITATIONS ON POTENTIAL LIABILITIES HAVE BEEN AN ESSENTIAL CONDITION IN SETTING THE PURIFIER(S) PRICE.

6. Applicable Law and Applicability

6.1. This Warranty is governed by and construed under the laws of Denmark without regard to its conflicts of laws provisions.

6.2. This Warranty may be subject to Aquaporin’s change at any time without notice.

Last updated: July 2023

General Terms and Conditions for Free or Discounted Samples

General Terms and Conditions

1. Applicability. Definitions

1.1. The General Terms and Conditions detailed herein (the “GTC”) shall apply to your (“Customer”, “You” or “Your”) order of Samples from Aquaporin if reference has been made to them, unless otherwise explicitly agreed in writing between the Parties. Aquaporin and Customer may be referred to herein collectively as the “Parties” and each individually as a “Party”. 1.2. “Aquaporin” shall mean Aquaporin A/S, Nymøllevej 78, 2800 Kongens Lyngby, Denmark, Danish CVR No. 28315694, or any of its affiliates providing Samples. 1.3. “Sample(s)” shall mean the free or discounted samples as has been stated in a shipment note or export invoice issued by Aquaporin. 1.4. The scope of these GTC concerns Samples only, and these GTC do not constitute a purchase agreement for products or other services between Aquaporin and Customer.

2. Limitation of use

2.1. Customer shall use Samples for its own account, and shall not use Samples for commercial purposes.

3. Price and delivery

3.1. Unless otherwise specified in an applicable quote issued by Aquaporin, Samples are supplied free of charge, exclusive of delivery costs. 3.2. Customer shall pay all delivery costs in connection with the delivery of Samples, unless otherwise specified in an applicable quote issued by Aquaporin. The delivery may be arranged by Aquaporin and invoiced to Customer. Customer shall make the payment before the delivery.

4. Feedback

4.1. In exchange for supply of Samples Customer agrees to provide Aquaporin with the following feedback regarding Samples, no later than one month after their receipt: 4.1.1. Feedback regarding Samples of Aquaporin Inside® reverse osmosis membrane elements:

  1. Performance data and operating conditions of Samples in comparison to the products from Your current supplier. Operating conditions should include, without limitation, feed quality (composition, temperature and pH), pressure and recovery;
  2. Does the permeate water quality match Your needs?
  3. What do You think about the performance?
  4. Was it easy to install? Did You need other parts or connectors compared to Your conventional setup (shims, adaptors, etc.)?
  5. Do You have any other observations?
  6. What would Your recommended retail price be?
  7. Following the completion of the successful test, describe the next steps after testing, i.e. a guaranteed order / starting a pilot project / negotiating for a distribution agreement.

4.1.2. Feedback regarding Samples of Aquaporin Inside® hollow fiber forward osmosis modules (“FO modules”):

  1. Application summary: aim, current process/technologies used, challenges, economics (OPEX/CAPEX, if available);
  2. Performance data, as described in Exhibit 1 hereto, and operating conditions of Samples in comparison to the products from Your current supplier. Operating conditions should include, without limitation, feed quality (composition, temperature and pH), pressure and recovery;
  3. What do You think about the performance?
  4. Was it easy to install? Did You need other parts or connectors compared to Your conventional setup (shims, adaptors, etc.)?
  5. Do You have any other observations?
  6. What would Your recommended retail price be?
  7. Following the completion of the successful test, describe the next steps after testing, i.e. a guaranteed order / starting a pilot project / negotiating for a distribution agreement.

4.1.3. Feedback regarding Samples of purifiers:

  1. Did the performance live up to Your expectations?
  2. Was the Sample easy to install?
  3. Can You see yourself selling the purifier?
  4. What sales channels would be appropriate for You to use?
  5. What is Your projected sales volume of this purifier?
  6. What would Your recommended retail price be?
  7. What level of support would You like to receive from Aquaporin?
  8. What regulatory requirements do You or local authorities have for this purifier?
  9. Does the Aquaporin's brand fit to your marketing strategy?
  10. Following the completion of the successful test, describe the next steps after testing, i.e. a guaranteed order / starting a pilot project / negotiating for a distribution agreement.

5. Use of name

5.1. Customer hereby agrees that Aquaporin may use Customer’s name, data and other information related to tests of Samples performed by Customer to make a case study for Aquaporin’s external references.

6. Test results

6.1. Any obtained test results related to Samples are confidential and cannot be shared to any third party without prior written consent.

7. Intellectual Property Rights

7.1. “Intellectual Property Rights” or “IPR” shall mean any and all patents, copyrights, rights in databases/database rights, design rights, registered designs, technical information, know how, trademarks, domain names, applications for any of the foregoing, sui generis rights, moral rights, and other industrial, proprietary property and/or intellectual property rights, in each case whether registered or unregistered and including the right to apply for registration of the same wherever subsisting in the world and such other similar protected rights in any country and any licenses under or in respect of such rights and including the exclusive right to do and to authorize others to do any and all acts in relation to such rights throughout the world including the right to claim damages for conversion in respect of any infringing works. 7.2. Customer recognises Aquaporin’s right, title and interest in and to the IPR relating to Samples and any documentation and drawings provided by Aquaporin in conjunction with a supply of any Sample. Any documentation or drawings provided by Aquaporin to Customer shall not be used for any other purpose than that for which they were provided and may not without the prior written consent of Aquaporin otherwise be used or copied, reproduced, transmitted or communicated to third parties.

8. Disclaimer

8.1. SAMPLES ARE DELIVERED 'AS IS' WITHOUT WARRANTY OF ANY KIND. CUSTOMER IS NOT ENTITLED TO REPLACEMENT, REPAIR OR REFUND IN THE EVENT OF ANY DEFECT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF SAMPLES IS ASSUMED BY CUSTOMER. AQUAPORIN DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION WITH RESPECT TO SAMPLES. AQUAPORIN SHALL NOT BE LIABLE FOR LOSS OF DATA, LOSS OF PRODUCTION, LOSS OF PROFIT, LOSS OF USE, LOSS OF CONTRACTS OR FOR ANY OTHER INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES WHATSOEVER IN RESPECT OF DELIVERY, USE OR DISPOSITION OF SAMPLES.

9. Governing Law

9.1. These GTC shall be governed and construed in accordance with the laws of Denmark without giving effect to choice of law principles thereof. Any and all disputes between the Parties arising out of or in connection with these GTC or the breach, or invalidity hereof shall – in the absence of an amicable solution to the dispute – be finally settled by Arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Voldgiftsinstituttet). The arbitration tribunal shall be composed of one arbitrator selected and appointed by the institute. The Place of Arbitration shall be Copenhagen. The language of the proceedings shall be Danish, unless the Parties agrees to English or any third language. Such arbitrations proceedings including any evidence exchanges as well as the contents of any award shall be confidential.

Last updated: April 2023

Exhibit 1.

Performance Data of Samples of FO modules

  1. Subject to clause 4.1.2.ii of the GTC, the Customer agrees to provide Aquaporin with the following feedback regarding performance data of Samples of FO modules:
Purpose/calculated values Process parameters Where to measure
Water flux Flow/Weight Feed bulk
TMP Pressure Feed inlet/outlet, draw inlet/outlet
Feed inlet pressure Pressure Feed inlet
Maintain stable temperature Temperature Feed outlet
Osmotic pressure (indirect measuremenent) Conductivity Feed outlet (for draw in batch, also draw tank)
Ensure min. feed outlet flow Flow Feed outlet

General Terms and Conditions of Sale
for Laboratory Scale Units

1. Applicability. Definitions

1.1. Unless otherwise explicitly agreed in writing between the Parties, these General Terms and Conditions of Sale (the “GTCS”) detailed herein shall apply to all sales of Lab Units by Aquaporin A/S, Nymøllevej 78, 2800 Kongens Lyngby, Denmark, Danish CVR No. 28315694 (“AQP”) to its customers (the “Customer”). AQP and the Customer may be referred to herein collectively as the “Parties” and each individually as a “Party”.

1.2. These GTCS are an integral and substantial part of every Offer to which they are attached. In case of discrepancy between these GTCS and an applicable Offer, such Offer shall prevail.

1.3. Any terms or conditions submitted by the Customer to AQP which are inconsistent with, different than, or additional to these GTCS are hereby rejected by AQP, unless otherwise explicitly agreed in writing between the Parties.

1.4. “Additional Services” means any and all services that are not specifically provided under an applicable Offer but may be performed by AQP upon request of the Customer. The Additional Services may include but not limited to installation and commissioning.

1.5. “Business Day” means a business day on which AQP and the Customer are open, but excluding Saturdays, Sundays and days on which commercial banks in the countries of AQP and the Customer are closed.

1.6. “Exhibits” means the documents referred to as such in an Offer.

1.7. “Intellectual Property Rights” or “IPR” means any and all patents, copyrights, rights in databases/database rights, design rights, registered designs, technical information, know how, trademarks, trade names, proprietary names, business and service marks, domain names, applications for any of the foregoing, sui generis rights, moral rights, and other industrial, proprietary property and/or intellectual property rights, in each case whether registered or unregistered and including the right to apply for registration of the same wherever subsisting in the world and such other similar protected rights in any country and any licenses under or in respect of such rights and including the exclusive right to do and to authorize others to do any and all acts in relation to such rights throughout the world including the right to claim damages for conversion in respect of any infringing works.

1.8. “Lab Units” means the laboratory scale units or customized laboratory scale units as has been subject of an Agreement.

1.9. “Offer” means a document which includes, without limitation, a datasheet, sales quote, these GTCS and other pertinent Exhibits, if any.

2. Offers. Orders. Formation of Agreement

2.1. All Offers made by AQP shall be open for acceptance within thirty (30) calendar days from the date of issue, unless otherwise specifically stated therein or agreed in writing between the Parties. AQP reserves itself the right to cancel its Offer at any time as long as it has not been accepted by the Customer by signing the Offer. When the validity period of the Offer lapses, AQP is not bound by the Customer’s acceptance.

2.2. The Customer shall send its orders for Lab Units via email to sales@aquaporin.com. All orders issued by the Customer shall specify, as a minimum, relevant Lab Units, quantity, applicable unit prices, delivery place and requested delivery date, if any.

2.3. All orders sent by the Customer, even if submitted pursuant to an Offer, will only be deemed accepted upon written confirmation by AQP. AQP shall, within seven (7) Business Days after receipt of an order, notify the Customer of its acceptance or rejection of such order and, if accepted, of the estimated date of delivery. Once accepted by AQP, orders are non-cancellable. Upon AQP’s acceptance, a binding agreement for the sale of Lab Units (“Agreement”) shall be deemed conclusive.

2.4. If any discrepancies occur in AQP’s order confirmation, the Customer shall immediately notify AQP hereof. Otherwise, AQP’s order confirmation shall be deemed accepted by the Customer.

3. Price. Terms of Payment

3.1. All sales of Lab Units to the Customer shall be made at the prices set forth in AQP’s Offer. Unless otherwise stated in an applicable Offer, all prices quoted by AQP are net prices, for delivery EXW, AQP’s premises (Incoterms® 2020), exclusive of taxes and duties.

3.2. The price shall remain in force for the period of validity of an applicable Offer.

3.3. Unless otherwise established, the price refers exclusively to the Lab Units as specified in an applicable Offer. In particular, the price excludes accessories, optional materials and Additional Services.

3.4. Unless otherwise stated in an applicable Offer, all payments to AQP shall be made in EUR by bank transfer against invoice and on payment terms specified in the Offer. Payment shall not be deemed to have been effected before AQP’s account has been fully and irrevocably credited.

3.5. In the event that the Customer is granted a credit, AQP may require the Customer to provide appropriate security for such credit on terms approved by AQP. The Customer’s non-compliance with the foregoing provisions entitles AQP to deny or withdraw any credit granted and/or stop shipment of Lab Units to the Customer, also if an order has previously been accepted by AQP.

3.6. Any amounts required to be paid by the Customer to AQP hereunder which are overdue, shall be subject to a default interest as from the due date until the date of receipt of payment at the rate of 2% per month or the highest rate permissible under applicable law. In addition hereto, AQP may, after having notified the Customer in writing, stop shipments of Lab Units and otherwise suspend its performance of an Agreement until it receives payment. The Customer shall be responsible for all costs and expenses incurred by AQP as a result of pursuing such amounts.

3.7. If the Customer delays the payment in full or any of the instalments described in an Offer for a period of more than two (2) months, AQP shall be able to rescind an applicable Agreement, without prejudice to its right to compensation for damage incurred, which in all cases shall be within the limits of the sales price. In this case, AQP shall remain entitled to retain the sums, however received from the Customer, for an amount corresponding to the entity of the damage sustained.

4. Delivery

4.1. Unless otherwise stated in an applicable Offer, all deliveries of Lab Units shall be made on delivery terms EXW, AQP’s premises (Incoterms® 2020). The passing of risk in Lab Units shall be regulated in accordance with the said delivery term.

4.2. AQP shall endeavour to deliver Lab Units on the date of delivery notified by AQP in its acceptance of a submitted order (cf. section 2.3). If AQP anticipates that it will not be able to deliver Lab Units on the said date, AQP shall forthwith notify the Customer hereof and, if possible, provide the Customer with a new estimated date of delivery.

4.3. AQP’s compliance with the delivery date is conditional upon Customer’s fulfilment of its own contractual obligations, including, but not limited to AQP’s punctual receipt from the Customer of specifications, documentation, permissions and advance payments, if applicable. If the Customer fails such fulfilment, the delivery date shall be extended accordingly.

4.4. The Customer shall communicate in advance, in writing, if the Customer is not in a position to receive the Lab Unit on the agreed date, indicating the reasons, and, if possible, the successive date for performing the pickup. In this case AQP shall, at all events, have the right to receive the payments agreed upon as if the pickup had taken place on the originally agreed date. AQP will make provision for the custody of the Lab Unit and, if requested, for its insurance which shall be for the account and risk of the Customer.

4.5. With the exception of cases of Force Majeure, AQP shall be able to request the pickup of the Lab Unit within a reasonable term. If, for reasons not attributable to AQP, the Customer refuses to receive the Lab Unit according to the foregoing term, AQP shall have the right to rescind an Agreement, wholly or in part. AQP shall have the right to compensation for damage deriving from the non- pickup of the Lab Unit for that part of the Agreement already performed, in the maximum limit of the agreed upon sales price.

5. Reservation of Title

5.1. To the extent permitted by applicable law, the title to Lab Units shall remain vested in AQP, and shall not pass to the Customer, until the Customer has paid for Lab Units in full. Until such payment is received, the Customer shall ensure that the Lab Units: (i) remain under the Customer’s exclusive control; (ii) are clearly marked as belonging to AQP; and (iii) are not incorporated into any other goods or transformed in any manner.

5.2. The reservation of title shall have no consequences upon the transfer of the risks to be borne by the Customer, as regulated by section 4.1.

6. Inspection and Acceptance

6.1. The Customer shall inspect the Lab Units delivered upon receipt. The Customer is deemed to have accepted the Lab Units delivered, unless written notice of rejection specifying the reasons for rejection is received by AQP within five (5) Business Days after delivery of the Lab Units. The foregoing only applies to defects apparent on inspection.

7. Changes to the Lab Units

7.1. AQP reserves the right to improve or modify any Lab Unit and to change the technical specifications, design or performance of any Lab Unit or any part thereof at any time before delivery and in any manner. If any such change is made, AQP shall to the extent reasonably practicable inform the Customer hereof. AQP shall have no liability to the Customer for any costs, lost profits, or other damages resulting from any specification, design, performance change or Lab Unit discontinuance.

8. Additional Services

8.1. The Customer may request, and AQP will use commercially reasonable efforts to provide the Customer with any Additional Services agreed by the Parties. Provision of the Additional Services and compensation in consideration of the Additional Services will be subject of a separate agreement.

9. Compliance with Laws

9.1. Each Party is responsible for compliance with and for obtaining such approvals and/or permits as may be required under national, state, and local laws, ordinances, regulations, and rules as may be applicable to the performance of their respective responsibilities and obligations under an Agreement.

10. Limited Warranty

10.1. A warranty period for the Lab Units is one (1) year from delivery of the relevant Lab Unit to the Customer. The foregoing doesn’t apply to membrane modules. The warranty applicable for such modules is specified in other documents relevant for them.

10.2. During the warranty period, AQP warrants that the Lab Unit, under normal use, will (i) be free from defects in materials or workmanship, and (ii) conform to the specifications relevant for the Lab Unit. The Customer shall without undue delay notify AQP of any such defect which comes to the Customer's knowledge. Failure to notify AQP of said defect, within thirty (30) calendar days from the date on which the defect is noticed or could have been noticed, shall mean that the Customer loses the right to have the defect remedied. Further, the Customer is responsible for documenting use within the specifications of the Lab Unit by adequate logging of operational data and providing AQP with such data together with the written notice.

10.3. AQP's sole obligation, and the Customer's sole remedy under this warranty, shall be repair or replacement of the defective Lab Unit, at AQP's discretion. The Customer shall handle the returns and replacements of defective Lab Units in accordance with AQP's instructions.

10.4. The warranty set forth in this section 10 is contingent upon proper warehousing, shipment and use of the Lab Units, and AQP shall not be liable for defects attributable to (a) modifications to or alterations of the Lab Units by any party other than AQP, (b) faulty maintenance, incorrect installation or faulty repair by any party other than AQP, (c) use of the Lab Units for a purpose for which they were not designed or intended, (d) normal wear and tear or deterioration, (e) misuse, abuse, negligence or accidents. In addition hereto, the warranty does not apply if the rating plate containing the serial number and the reference date of the Lab Units has been altered, defaced or removed.

10.5. THE WARRANTY SET FORTH IN THIS SECTION 10 IS THE ONLY WARRANTY APPLICABLE BETWEEN THE PARTIES WITH RESPECT TO THE LAB UNITS AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQP DISCLAIMS AND EXCLUDES ALL WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

11. Lab Unit Liability

11.1. In the event any third party claims, suits or actions are brought against the Customer during the Warranty Period, alleging bodily injury (including death) or damage to property caused by defects in Lab Units, AQP agrees to indemnify and hold the Customer harmless for any and all claims, costs, damages, expenses (including the reasonable fees of attorneys and other professionals), liabilities and other responsibilities incurred or sustained by the Customer, provided that:

  1. the defect is attributable to the negligence of AQP and existed at the time the Lab Unit was delivered by AQP to the Customer and, consequently, is not attributable to (i) an accident, (ii) faulty and/or improper use, installation, maintenance, service, repair or alteration contrary to AQP’s technical specifications, documentation or written instructions, (iii) normal wear and tear or deterioration, (iv) improper environmental conditions (including, but not limited to, electrical surges, water damage, and heat exposure), (v) the negligence of the Customer or any third party, or (vi) lack of responsible care;
  2. no Lab Unit or label modifications have been made;
  3. the Customer is liable for such bodily injury or property damage under the relevant laws; and
  4. the Customer promptly notifies AQP in writing of any notice or claim of such injury or damage and of the commencement of any suit or action for injury or damage received by or brought against the Customer.

11.2. AQP shall have the right, but not be obligated to, assume the defence of any claim made in accordance with section 11.1 at AQP’s own cost and expense and the Customer shall in such case, at AQP’s cost and expense, provide such information, cooperation, and assistance to AQP as may be reasonably necessary to assist AQP in its defence against any such claim. The Customer may not settle or otherwise enter into any agreement with any claimant, nor make any admission which may be prejudicial to the interest of AQP, without AQP’s prior written consent.

11.3. Notwithstanding anything to the contrary in an Agreement or the GTCS, the liability of AQP under this section 11 shall only apply and be limited to what is payable from the product liability insurance taken out and maintained by AQP.

11.4. THE FOREGOING PROVISIONS OF THIS SECTION 11 SET FORTH THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF AQP AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS SUITS, OR ACTIONS RELATED TO BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE.

12. Indemnification by the Customer

12.1. The Customer shall be fully liable for, and shall keep AQP indemnified and held harmless against any and all losses, claims, liabilities, damages, costs and expenses (including the reasonable fees of attorneys and other professionals) of every nature and kind incurred or sustained by AQP or otherwise arising out of or relating to the Customer’s sale, promotion and marketing of the Lab Units, including any misrepresentations or false statements made by the Customer to its customers regarding the Lab Units. In addition hereto, should the Customer, by act or omission, be in breach of an Agreement, the Customer shall assume full liability for any loss or damage incurred by AQP as a result of such breach by the Customer.

12.2. The indemnity shall apply regardless of where the occurrence giving rise to the claim took place or where the claim is asserted. AQP shall give the Customer notice of any claim and of any legal proceedings within the scope of the indemnity and shall give the Customer the right to conduct the negotiations of any such claim and the defence of any such legal proceeding, subject to the right of AQP to be associated with such negotiation or defence.

13. Intellectual Property Rights

13.1. The Customer recognizes AQP’s right, title and interest in and to the IPR relating to the Lab Units and its underlying technology, and all such IPR will remain the property of AQP.

13.2. The Customer undertakes not to copy, decompile, reverse engineer, reproduce the Lab Unit or disclose to third parties the technical information, designs, models, prototypes, formulas and knowledge received from AQP. The Customer acknowledges that this information is confidential and undertakes to use it solely for the purpose for which it was divulged.

14. IPR Infringement

14.1. If any Lab Unit as delivered hereunder is held to infringe a third party’s IPR and the Customer is enjoined from using same, AQP may, at its expense and option, (a) modify the Lab Unit without impairing in any respect the functionality, capacity or performance, so that it is non-infringing; (b) procure for the Customer the right to continue to use the Lab Unit; (c) refund the purchase price of the Lab Unit less a reasonable amount for usage; or (d) procure the Lab Unit with a price reduction in a proportion of 20% per year.

14.2. THE FOREGOING PROVISIONS OF THIS SECTION 14 SET FORTH THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF AQP AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.

15. Limitation of Liability

15.1. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 16 “CONFIDENTIALITY” AND THE CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 “INDEMNIFICATION BY THE CUSTOMER” AND SECTION 13 “INTELLECTUAL PROPERTY RIGHTS”, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF AN AGREEMENT, WARRANTY, TORT, LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR UNDER ANY OTHER LEGAL THEORY, SHALL EITHER PARTY WITH RESPECT TO ANY MATTERS RELATING TO AN AGREEMENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. THIS LIMITATION SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER ANY WARRANTY AND/OR THE TERMS AND CONDITIONS OF AN AGREEMENT. 15.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN AN AGREEMENT, AQP’s TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM AN AGREEMENT AND THESE GTCS SHALL BE LIMITED TO AND IN NO CASE EXCEED THE PURCHASE PRICE OF THE LAB UNIT GIVING RISE TO THE LIABILITY. 15.3. The foregoing limitations shall not apply in case of gross negligence or wilful misconduct of the defaulting Party.

16. Confidentiality

16.1. Each Party undertakes, and shall cause all officers, employees and other persons concerned by an Offer and/or Agreement to undertake, to keep secret all information received from the other Party and not to use the same except to the extent necessary to fulfil its rights and obligations under such Agreement.

17. Force Majeure

17.1. “Force Majeure” means the occurrence of an event or circumstance that prevents or impedes a Party from performing one or more of its contractual obligations under an Agreement, if and to the extent that the affected Party proves: (a) that such impediment is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of an Agreement; and (c) that the effects of the impediment could not reasonably have been avoided or overcome by the affected Party.

17.2. In the absence of proof to the contrary, the following events affecting a Party shall be presumed to fulfil conditions (a) and (b) under section 17.1: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy, supply shortages by sub-contractors; (vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.

17.3. A Party successfully invoking this section 17 is relieved from its duty to perform its obligations under an Agreement and from any liability in damages or from any other contractual remedy for breach of an Agreement, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other Party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected Party. Where the duration of the impediment invoked has the effect of substantially depriving the Parties of what they were reasonably entitled to expect under an Agreement, either Party has the right to terminate an Agreement by notification within a reasonable period to the other Party. Unless otherwise agreed, the Parties expressly agree that an Agreement may be terminated by either Party, if the duration of the impediment exceeds one hundred twenty (120) calendar days.

18. Publicity

18.1. No press release or public announcement of any kind, nor issuing of any promotional material, relating to an Offer and/or Agreement or the contents shall be made by the Customer without AQP’s written approval.

19. Assignment

19.1. Neither Party may without written approval of the other assign an Agreement or transfer its interest or any part thereof under an Agreement to any third party except that AQP may assign its rights or obligations to a third party in connection with the merger, reorganization or acquisition of stock or assets affecting all or substantially all of the properties or assets of AQP.

20. Miscellaneous

20.1. No waiver by AQP of any breach by the Customer, or failure by AQP to insist on the Customer’s performance of obligations shall be considered a waiver of any subsequent breach of the same or any other provision.

20.2. Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.

20.3. Nothing in the relationship between AQP and the Customer shall create an agency, partnership or joint venture between the Parties and in specific the Customer shall not be entitled to make any representation or warranty on behalf of AQP.

20.4. Any amendment or modification of an Agreement, Offer or these GTCS shall not be valid, unless made in writing and signed by both Parties.

21. Governing Law and Arbitration

21.1. These GTCS shall be governed and construed in accordance with the laws of Denmark without regard to the provisions of the United Nations Convention on Contracts for the International Sale of Goods.

21.2. Any and all disputes between the Parties arising out of or in connection with these GTCS or the breach, termination or invalidity thereof shall – in the absence of an amicable solution to the dispute – be finally settled by Arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Voldgiftsinstituttet). The arbitration tribunal shall be composed of one arbitrator selected and appointed by the institute. The Place of Arbitration shall be Copenhagen. The language of the proceedings shall be Danish, unless the Parties agree to English or any third language. Such arbitrations proceedings including any evidence exchanges as well as the contents of any award shall be confidential.

 

Updated: October 2023

General Terms and Conditions of Sale for Systems

1. Applicability

1.1. These General Terms and Conditions of Sale (“GTCS”) shall apply to all sales of Systems by Aquaporin A/S, Nymøllevej 78, 2800 Kongens Lyngby, Denmark, Danish CVR No. 28315694 (“AQP”). The GTCS are an integral and substantial part of every Contract to which they are attached. Any terms or conditions submitted by a person or business that purchases a System (“Customer”) to AQP which are inconsistent with, different than, or additional to these GTCS are hereby rejected by AQP unless otherwise explicitly agreed in writing between the parties. The Customer’s acceptance of the Contract shall be deemed as acceptance of these GTCS.

1.2. In case of discrepancy between these GTCS and the Offer, the Offer shall prevail.

2. Contract, Offers, Orders and Order Confirmations

2.1. “Contract” means a written agreement between the parties for the sale of System by AQP. “System(s)” means the system(s) or customized system(s) as has been the subject of a Contract. The Contract comprises an Offer including its Exhibits and these GTCS. “Exhibits” means the documents referred to as such in the Contract. The Contract shall be deemed conclusive and binding upon the parties when the Offer is accepted by signing the Offer.

2.2. “Offer” means a document containing, including but not limited to, project data, technical description, vendor list, spare parts list, prices and pertinent Exhibits. AQP reserves itself the right to cancel its Offer at any time as long as it has not been accepted according to clause 2.1. When the validity period of the Offer lapses, AQP is not bound by the Customer’s acceptance.

2.3. AQP shall, within seven (7) Days after receipt of an order, notify the Customer of its acceptance or rejection of such order and, if accepted, of the estimated date of delivery. “Day” means a business day on which AQP and the Customer are open, but excluding Saturdays, Sundays and days on which commercial banks in the countries of AQP and the Customer are closed. No orders shall be binding until accepted in writing by AQP. AQP shall communicate to the Customer the name of a technical contact within its personnel for purposes of managing the submitted order.

3. Sales Price and Terms of Payment

3.1 The sales price shall remain in force for the period of validity of the Offer. In the event that this period is not specified, the period of validity shall be understood as ninety (90) Days.

3.2. Unless otherwise established, the sales price refers exclusively to the System as specified in the Offer. In particular, the sales price excludes all taxes, accessories, optional materials and additional services.

3.3. The sales price is fixed, unless otherwise explicitly agreed between the parties.

3.4. If not otherwise agreed in writing, all prices are stated, and all payments to AQP shall be made in EUR by bank transfer against invoice. Payment shall not be deemed to have been credited before AQP’s account has been fully and irrevocably credited.

3.5. Each party shall pay its own transaction fees pertaining to such payment, including any applicable bank charges and fees.

3.6. In the event of delay in payment of over than seven (7) Days, AQP shall be entitled to receive daily default interest at the rate of 8% per year for every Day's delay commencing from the last Day valid for making payment, without it being necessary for AQP to request a summons to pay. This shall be in addition to, and not in limitation of, any other rights or remedies to which AQP is or may be entitled at law. The Customer shall be responsible for all costs and expenses incurred by AQP as a result of pursuing past-due amounts.

3.7. In the event of delays in payments, AQP shall be entitled to suspend the performance of its own contractual obligations until it is in receipt of payment and the relative interest, after giving due written notice to the Customer.

3.8. If the Customer delays the payment of any of the instalments described in the Contract for a period of more than two (2) months, AQP shall be able to rescind the Contract, without prejudice to its right to compensation for damage incurred, which in all cases shall be within the limits of the sales price. In this case, AQP shall remain entitled to retain the sums, however received from the Customer, for an amount corresponding to the entity of the damage sustained.

3.9. All amounts due under these GTCS shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law), without the prior written approval of AQP.

4. Terms of Delivery

4.1. All deliveries of System will be made on delivery terms specified in the Offer. The passing of risk in the System shall be regulated in accordance with the specified delivery term.

4.2. AQP shall endeavor to deliver the System on the date of delivery according to clause 2.3. If AQP anticipates that it will not be able to deliver the System on the said date, AQP shall forthwith notify the Customer hereof, stating the reason of the delay and, if possible, provide the Customer with a new estimated date of delivery.

4.3. AQP shall notify the Customer in advance of the readiness for Shipment and a point of Shipment. “Shipment” means that the System is packed and ready for pickup.

4.4. In the event of delay in Shipment occasioned for reasons of Force Majeure (as specified in section 18) or acts or omissions of the Customer, including non-payment of part of the sales price, the Shipment shall be deferred for a reasonable period, having due regard to the circumstances of the case.

4.5. The Customer shall communicate in advance, in writing, if it is not in a position to receive the System at the agreed date, indicating the reasons, and, if possible, the successive date for performing the pickup. In this case AQP shall, at all events, have the right to receive the payments agreed upon as if the pickup had taken place at the originally agreed date. AQP will make provision for the custody of the System and, if requested, for its insurance which shall be for the account and risk of the Customer.

4.6. With the exception of cases of Force Majeure, AQP shall be able to request the pickup of the System within a reasonable term. If, for reasons not attributable to AQP, the Customer refuses to receive the System according to the foregoing term, AQP shall have the right to rescind the Contract, wholly or in part. AQP shall have the right to compensation for damage deriving from the non-pickup of the System for that part of the Contract already performed, in the maximum limit of the agreed upon sales price.

5. Reservation of Title

5.1. The System shall remain the property of AQP until the full payment of the sales price is made, as defined in the present GTCS. Until such payment is received, the Customer shall ensure that the System: (i) remain under the Customer’s exclusive control; (ii) are clearly marked as belonging to AQP; and (iii) are not incorporated into any other goods or transformed in any manner.

5.2. The reservation of title shall have no consequences upon the transfer of the risks to be borne by the Customer, as regulated by clause 4.1.

6. Inspection and Acceptance

6.1. The Customer shall, within five (5) Days of the arrival of the System at Customer’s premises or other location where the System is to be delivered ("Customer location"), inspect the System at its own cost and notify AQP in writing of any defect in System or any other matter by reason of which the Customer alleges that the System delivered does not comply with this Contract, and which should be apparent on inspection.

6.2. The Customer is deemed to have accepted the System delivered unless written notice of rejection as specified in clause 6.1 is received by AQP.

7. Handling, Conservation and Installation Premises

7.1. The Customer recognises that the System requires particular care in handling and storage and that the premises where the installation shall take place needs an unencumbered area and adequate ventilation for the dispersion of heat. Therefore, the Customer undertakes to observe the indications specifically set forth in the technical report and/or the system operating manual that accompany the System. Any flue gases or vapours dangerous for people and/or corrosive for the System must be eliminated by the Customer before installation operations are undertaken. The System shall also be placed in an environment appropriate for its functioning and which will permit the installation personnel to operate in safe conditions. If these conditions are not complied with, any damage shall be for the account of the Customer.

8. Additional Services

8.1. The additional services can comprise installation and commissioning if AQP and the Customer have agreed on it.

8.2. If the installation and/or commissioning are to be undertaken by the Customer, the latter must carry out both operations in a workmanlike manner meeting the standards of quality for such work. Further, the Customer shall comply strictly with the system operating manual and other instructions received from the personnel of AQP. The installation and/or the commissioning shall be performed at the Customer’s sole risk, cost and expense.

8.3. If the installation and/or commissioning are undertaken by AQP, the compensation for such additional services to be agreed upon with respect to each such occasion as it arises.

8.4. If the additional services are undertaken by AQP, the Customer shall ensure that AQP’s personnel will enjoy appropriate conditions to perform their work during ordinary working hours and in compliance with the timescale agreed upon. The Customer shall also make available the vehicles necessary for handling and lifting the System as well as utility services such as water mains supply, electricity, compressed air and whatever else may be necessary.

8.5. The Customer undertakes to furnish the responsible personnel with all the information necessary for the installation and/or commissioning operations, and within the timescale requested, including the names of reference contacts, layout, blueprints, working hours, access permits, the characteristics of the service and process networks. The Customer shall also furnish all the information necessary and relevant on the question of safety at work and in good time, which must also include the safety plan in force for the place of installation and/or commissioning.

8.6. In the event that the Customer fails to provide the information or the means necessary within the agreed timescale or if it is necessary for the Customer to carry out preparatory work or improvements to the installation and/or commissioning area and such work is not performed within the agreed timescale, the installation and/or commissioning may be delayed or suspended, because the agreed timescale cannot be complied with. In this case the Customer shall not suspend the payments to be made in the manner and at the times agreed upon. Any cost increases due to delays, non-performance or the unworkmanlike execution of work by the Customer, shall be charged by AQP at the completion of the work.

8.7. Upon the successful completion of the additional services AQP and the Customer shall sign an acceptance certificate which shall be a conclusive proof, as between AQP and the Customer, that each part of the additional services has been completed and satisfactory to the Customer in all respects.

9. Site Acceptance Test

9.1. The purpose of "Site Acceptance Test" is to verify that the System operates correctly. The Site Acceptance Test is defined in the documents accompanying the System.

9.2. The Site Acceptance Test shall entail the final acceptance of the System by the Customer and is conducted in the presence of both parties and under the responsibility of the duly authorized representative of the Customer. The Customer's duly authorized representative shall sign a Site Acceptance Test certificate confirming such acceptance.

9.3. If not otherwise specified, the Site Acceptance Test shall be conducted at the completion of the installation and commissioning operations.

9.4. After the lapse of four (4) weeks from agreed date without it being possible to undertake the Site Acceptance Test, unless for causes attributable to AQP or causes of Force Majeure, the System shall be deemed automatically accepted without any further reserve. If the causes are attributable to the Customer, AQP shall not be liable for any defects in the System.

9.5. The Customer undertakes to provide all the assistance necessary, through its own personnel and whatever material or service shall be required, for the performance of the Site Acceptance Test in the time period agreed upon. Any cost increases due to delays, non-performance or the unworkmanlike execution of work by the Customer, shall be charged by AQP at the completion of the work.

9.6. Unless otherwise specified, the Customer is not authorised to use the System prior to the completion of the Site Acceptance Test. If the Customer violates this prohibition, it shall be held responsible for all the damage that may ensue and any System warranty given by AQP shall automatically lapse.

9.7. If the function recorded during the Site Acceptance Test phase is significantly different from the specifications set out in the Contract, the Customer will allow AQP to make an adequate technical compliance assessment to understand the reasons for the non-compliance. If non- compliance is due to causes attributable or ascribable to AQP, the latter undertakes to provide the Customer with proposals for alternative solutions to work out the problems. If such solutions are not acceptable by the Customer as the functioning of the System would be compromised, the provisions set forth under section 12 “Warranty” shall apply.

10. Changes to Systems

10.1. AQP reserves the right to improve or modify any System and to change the technical specifications, design or performance of any System or any part thereof at any time before delivery and in any manner. If any such change is made, AQP shall to the extent reasonably practicable inform the Customer hereof.

11. Compliance with Specifications, CE Mark

11.1. AQP guarantees that the System complies with the specifications contained in the Offer, its pertinent Exhibits and conform with applicable directives and regulations for goods intended for use in the European Union, unless otherwise specified in the Contract. This compliance is attested by the CE mark and the declaration of compliance attached to the system operating manual.

12. Limited Warranty

12.1. A warranty period for the System is two (2) years from delivery of the relevant System to the Customer. The foregoing doesn’t apply to membrane modules. The warranty applicable for such modules is specified in other documents relevant for them.

12.2. During the warranty period, AQP warrants that the System is free from any defect in materials or workmanship under normal use, provided that the Customer without undue delay notifies AQP of any such defect which comes to the Customer's knowledge. Further, the Customer is responsible for documenting use within the specifications of the System by adequate logging of operational data and providing AQP with such data together with the written notice.

12.3. AQP's sole obligation, and the Customer's sole remedy under this warranty, shall be repair or replacement of the defective System, at AQP's discretion. The Customer shall handle the returns and replacements of defective Systems in accordance with AQP's instructions.

12.4. The warranty set forth in this section 12 is contingent upon proper warehousing, shipment and use of the Systems, and AQP shall not be liable for defects attributable to (a) modifications to or alterations of the Systems by any party other than AQP, (b) faulty maintenance, incorrect installation or faulty repair by any party other than AQP, (c) use of the Systems for a purpose for which they were not designed or intended, (d) normal wear and tear or deterioration, (e) misuse, abuse, negligence or accidents. In addition hereto, the warranty does not apply if the rating plate containing the serial number and the reference date of the System has been altered, defaced or removed.

12.5. THE WARRANTY SET FORTH IN THIS SECTION 12 IS THE ONLY WARRANTY APPLICABLE BETWEEN THE PARTIES WITH RESPECT TO THE SYSTEMS AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQP DISCLAIMS AND EXCLUDES ALL WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

13. System Liability

13.1. In the event any third party claims, suits or actions are brought against the Customer during the warranty period, alleging bodily injury (including death) or damage to property caused by defects in the Systems, AQP agrees to indemnify and hold the Customer harmless for any and all claims, costs, damages, expenses (including the reasonable fees of attorneys and other professionals), liabilities and other responsibilities incurred or sustained by the Customer, provided that:

  1. the defect is attributable to the negligence of AQP and existed at the time the System was delivered by AQP to the Customer and, consequently, is not attributable to (i) an accident, (ii) faulty and/or improper use, installation, maintenance, service, repair or alteration contrary to AQP’s technical specifications, documentation or written instructions, (iii) normal wear and tear or deterioration, (iv) designs, specifications, instructions provided by parties other than AQP, (v) improper environmental conditions (including, but not limited to, electrical surges, water damage, and heat exposure), (vi) the negligence of the Customer or any third party, or (vii) lack of responsible care;
  2. no System or rating plate modifications have been made;
  3. the Customer is liable for such bodily injury or property damage under the relevant laws; and
  4. the Customer promptly notifies AQP in writing of any notice or claim of such injury or damage and of the commencement of any suit or action for injury or damage received by or brought against the Customer.

13.2. AQP shall have the right, but not be obligated to, assume the defence of any claim made in accordance with clause 13.1 at AQP’s own cost and expense and the Customer shall in such case, at AQP’s cost and expense, provide such information, cooperation, and assistance to AQP as may be reasonably necessary to assist AQP in its defence against any such claim. The Customer may not settle or otherwise enter into any agreement with any claimant, nor make any admission which may be prejudicial to the interest of AQP, without AQP’s prior written consent.

13.3. Notwithstanding anything to the contrary in these GTCS, the liability of AQP under this section 13 shall only apply and be limited to what is payable from the product liability insurance taken out and maintained by AQP.

13.4. THE FOREGOING PROVISIONS OF THIS SECTION 13 SET FORTH THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF AQP AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS, SUITS, OR ACTIONS RELATED TO BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE.

14. Intellectual Property Rights

14.1. All intellectual property rights or other proprietary rights in and to the Systems or related to the Systems, including but not limited to their formula, design, packaging and know-how, and any modifications or developments thereto, as well as the trademarks and trade names under which the Systems are marketed shall remain the sole and exclusive property of AQP and the Customer acquires no rights, title or license therein or thereto.

14.2. The Customer undertakes not to copy, decompile, reverse engineer, reproduce the Systems or disclose to third parties the technical information, designs, models, prototypes, formulas and knowledge received from AQP. The Customer acknowledges that this information is confidential and undertakes to use it solely for the purpose for which it was divulged.

15. Intellectual Property Rights Infringement

15.1. If any System as delivered hereunder is held to infringe a third party’s patent, utility model, design, trademark or other intellectual property right and the Customer is enjoined from using same, AQP may, at its option and expense, (a) modify the System without impairing in any respect the functionality, capacity or performance, so that it is non-infringing; (b) procure for the Customer the right to continue to use and sell the System; (c) replace the System with an equally suitable, non-infringing system; or d) procure the System with a price reduction in a proportion of 20% per year.

15.2. THE FOREGOING PROVISION OF THIS SECTION 15 SET FORTH THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF AQP AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.

16. Limitation of Liability

16.1. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 17 “CONFIDENTIALITY”, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR UNDER ANY OTHER LEGAL THEORY, SHALL EITHER PARTY WITH RESPECT TO ANY
MATTERS RELATING TO THESE GTCS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES INCLUDING LOSS OF DATA, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, LOSS OF GOODWILL, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. THIS LIMITATION SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER ANY WARRANTY AND/OR THE TERMS AND CONDITIONS OF THESE GTCS.

16.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GTCS, AQP’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THESE GTCS SHALL BE LIMITED TO AND IN NO CASE EXCEED THE PURCHASE PRISE FOR THE SYSTEM.

16.3. The foregoing limitations shall not apply in case of gross negligence or wilful misconduct of the defaulting party.

17. Confidentiality

17.1. Each party undertakes, and shall cause all officers, employees, sub-contractors and other persons concerned by the GTCS and other documents of the Contract to undertake, to keep secret all information received from the other party and not to use the same except to the extent necessary to fulfil its rights and obligations under the GTCS and other documents of the Contract.

18. Force Majeure

18.1. “Force Majeure” means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under these GTCS, if and to the extent that the affected party proves: (a) that such impediment is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of these GTCS; and (c) that the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

18.2. In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions (a) and (b) under clause 18.1: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy, supply shortages by sub-contractors; (vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.

18.3. A party successfully invoking this section 18 is relieved from its duty to perform its obligations under these GTCS and from any liability in damages or from any other contractual remedy for breach of these GTCS, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected party. Where the duration of the impediment invoked has the effect of substantially depriving the parties of what they were reasonably entitled to expect under these GTCS, either party has the right to terminate these GTCS by notification within a reasonable period to the other
party. Unless otherwise agreed, the parties expressly agree that these GTCS may be terminated by either party if the duration of the impediment exceeds one hundred twenty (120) calendar days.

19. Publicity

19.1. No press release or public announcement of any kind, nor issuing of any promotional material, relating to an order or a Contract or its contents shall be made by the Customer without AQP’s written approval.

20. Assignment

20.1. The Customer may not assign or transfer its right and obligations, whether in whole or part, without the prior written consent of AQP.

21. Severability

21.1. If any provision or part of a provision of these GTCS is or is held by any court of competent jurisdiction to be unenforceable or invalid, such unenforceability or invalidity shall not affect the enforceability of any other provision.

22. Waiver

22.1. The waiver by AQP of the exercise of its rights in the event of the non-performance by the other party pursuant to the terms of these GTCS, shall not be construed as the waiver for any successive cases of non-performance, and nor shall it limit the right of AQP to enforce its rights under the term or condition of these GTCS at a later date.

23. Governing Law and Arbitration

23.1. These GTCS shall be governed and construed in accordance with the laws of Denmark without regard to the provisions of the United Nations Convention on contracts for the International Sale of Goods.

23.2. Any and all disputes between the parties arising out of or in connection with these GTCS or the breach, termination or invalidity hereof shall – in the absence of an amicable solution to the dispute – be finally settled by Arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Voldgiftsinstituttet). The arbitration tribunal shall be composed of one arbitrator selected and appointed by the institute. The Place of Arbitration shall be Copenhagen. The language of the proceedings shall be English. Such arbitrations proceedings including any evidence exchanges as well as the contents of any award shall be confidential.

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