The Buyer may place orders (“Order(s)”) with Seller for Seller products and all such Orders will be governed solely by the terms and conditions contained in this Sales Contract, unless otherwise mutually agreed. Any oral understandings are expressly excluded.
Seller shall not be deemed to have waived the terms and conditions contained herein if it fails to object to provisions appearing on, incorporated by reference in, or attached to any Buyer order form, and those provisions are hereby expressly rejected.
No contrary or additional terms or conditions contained in any Buyer order form shall apply unless agreed to in writing and signed by an authorized representative of Seller. Additionally, Seller reserves the right to reject any Order submitted to it by Buyer.
Delivery shall be made within the time specified on Buyer’s Order or in accordance with Seller’s quoted lead time and monthly delivery rate, whichever is later.
Transportation charges shall be prepaid and Buyer shall reimburse Seller upon receipt of an invoice for such charges. Seller shall have the right to make early, accelerated, and/or partial shipments in advance of the contractual delivery schedule, at its sole and absolute discretion.
The Buyer shall inspect and accept, or reject products delivered pursuant to the Order immediately after Buyer takes custody of such products. In the event the products do not comply with the applicable Seller drawings or specifications, the Buyer shall notify the Seller of such nonconformance and give the Seller a reasonable opportunity to correct any such nonconformance.
The Buyer shall be deemed to have accepted any products delivered hereunder and to have waived any such nonconformance in the event Seller does not receive notification that the products delivered hereunder do not comply with the Seller’s drawings or specifications, within fifteen (15) business days after the Buyer takes custody of such products.
Unless otherwise agreed, the Buyer shall have no right to conduct an inspection at the Seller’s facility. In the event the parties hereto mutually agree that Buyer may inspect Seller’s product at Seller’s facility, any such inspection shall be conducted with reasonable prior notice by Buyer to Seller and at reasonable times, on a non-interference basis, and such inspection shall not include the right to establish mandatory inspection points or enter proprietary or competition-sensitive areas of Seller’s facility.
Seller at all times reserves the right and is entitled in its sole discretion, to make changes, additions, or improvements to the products being delivered under an Order without liability or any obligation to incorporate such changes, additions, or improvements into any item or product manufactured, sold or delivered prior to incorporation of the change, addition or improvement.
Prices and payments will be in Euro. Invoice terms are net 30 days unless otherwise specified. Prices quoted are believed to be accurate; however, Seller reserves the right to correct any inadvertent errors in the pricing prior to acceptance of the Order.
Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security, or payment in advance of the amount of credit involved. In the event payments are not made in a timely manner, Seller may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in
breach and terminate this Order for default; (2) repossess the goods for which payment has not been made; (3) withhold future shipments under this Order until delinquent payments are made; (4) deliver future shipments under this Order on a cash with order or cash in advance basis even after the delinquency is cured; (5) charge interest on the delinquency at a rate of 1- 1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or (6) recover all costs of collection including reasonable legal advice fees and attorney’s fees; and (7) at Seller’s option combine any of the above rights and remedies as provided by law.
All amounts that Buyer owes Seller under an Order shall be due and payable according to the terms of an Order. Buyer is prohibited from and shall not set off such amounts or any portion thereof, whether or not liquidated, against sums which Buyer asserts are due it, from its parent affiliates, subsidiaries or other divisions or units under other transactions with Seller, its parents, affiliates, subsidiaries or other divisions or units.
As used in this Section “Nonconformance” means a failure to comply with or failure to operate due to noncompliance with applicable Seller drawings or having defects in workmanship or material. Normal wear and tear and the need for regular overhaul and periodic maintenance shall not constitute a Nonconformance.
Seller warrants that at the time of delivery to Buyer, its Products will comply with applicable Seller drawings and will be free from defects in workmanship and material. These warranties shall run to the Buyer, its successors, and assigns. This warranty is valid for twelve (12) months after the Seller’s shipment of the Product.
The warranty period for Seller’s repair or replacement of the failed product only, covered by the warranty, shall be the unexpired portion of the original warranty or 6 months after the shipment of the repaired or replaced product, whichever is longer.
Buyer must notify Seller in writing of the Nonconformance of any Product within the warranty period and return the Product to Seller within thirty (30) days after such discovery.
Prior to the return of the Product to the Seller, the Buyer must obtain a Return Material Authorization (RMA) from the Seller. Seller reserves the right to return to Buyer any Product received without a valid RMA.
In the event Seller is unable to confirm Buyer’s reported Nonconformance, Buyer agrees to pay Seller an Evaluation/No Defects Found Charge, the amount of which shall be as specified in Seller’s Return Material Authorization. Seller’s obligation and Buyer’s remedy under this warranty is limited to either repair or replacement, by Seller’s election, of any Product Nonconformance. Seller agrees to assume round trip transportation costs for a nonconforming Product in an amount not to exceed normal shipping charges to the nearest facility designated herein for warranty repair of products delivered under an Order.
The risk of loss or damage to all Products in transit shall be borne by the party initiating the transportation of such Products.
Seller shall not be liable under this warranty if the Product has been exposed or subjected to:
DISCLAIMER: THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL THE SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND. NO EXTENSION OF THIS WARRANTY SHALL BE BINDING UPON THE SELLER UNLESS SET FORTH IN WRITING AND SIGNED BY THE SELLER’S AUTHORIZED REPRESENTATIVE.
The Seller shall be excused from delays in delivery and performance of other contractual obligations under this Order caused by acts or omissions that are beyond the reasonable control and without the fault or negligence of Seller
including but not limited to Government embargoes, blockades, seizure, or freeze of assets, delays or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any Government, fires, floods, severe weather conditions, or any other acts of God, quarantines, labor strikes or lockouts, riots, strife, insurrection, civil disobedience, war,
material shortages or delays in deliveries to Seller by third parties. If the excusable delay circumstances extend for six months, either party may, at its option, terminate this Order without penalty or liability and without being deemed in default or in breach thereof.
Buyer reserves the right to cancel any portion of this Order affected by a default of Seller or any insolvency or suspension of Seller’s operations or any petition filed or proceeding commenced by or against Seller under any state or federal law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors.
Except as otherwise specifically agreed in writing by Buyer and Seller, any dispute relating to an Order placed by a Buyer incorporated in the United Kingdom which is not resolved by the parties shall be adjudicated by any court of competent jurisdiction.
For orders placed by a Buyer incorporated outside the United Kingdom, the parties shall resort to binding arbitration under mutually agreed procedures.
This Agreement shall be interpreted in accordance with the laws of Denmark, exclusive of any choice of law provisions.
The Seller and Buyer expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto.
Seller’s liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair, or use of any product covered by or furnished under an Order shall in no case exceed the purchase price allocable to the product or part thereof which gives rise to the claim, except as provided in the paragraph entitled “Patent Indemnity.”
In no event shall Seller be liable for special, incidental, or consequential damages. Except as herein expressly provided to the contrary, the provisions of this Order are for the benefit of the parties to the Order and not for the benefit of any other person.
Buyer agrees that it will not use Seller’s data for the manufacture or procurement of products which are the subject of this Order or any similar products or cause said products to be manufactured by or procured from any other source, or reproduce said data and information or otherwise appropriate them without the written authorization of the Seller.
Buyer agrees that it will not disclose or make available to any third party any of Seller’s data or other information pertaining to this Order which is proprietary to Seller without obtaining Seller’s prior written consent.
Except insofar as an Order calls for products pursuant to Buyer’s designs, drawings or specifications, Seller agrees to pay the amount of any final judgment against Buyer resulting from a suit claiming that any commercial products manufactured or furnished hereunder, by reason of their manufacture, sale or use, infringes any EU patent which has issued at the date of the contract, and Buyer’s reasonable costs and expenses in defense of such suit if Seller does not undertake the defense thereof, provided Seller is promptly notified of the threat or commencement of such suit and is offered full and exclusive control to conduct the defense or settlement thereof.
Seller’s indemnity shall not apply where infringement would not have occurred from the normal use for which the products were designed. No responsibility is assumed for actual or alleged infringement of any foreign patent. Seller’s liability for damages hereunder is limited to those computed solely on the value of any products sold to Buyer.
In no event shall Seller be liable for consequential damages or costs applicable thereto. In the event of any claim that a product furnished hereunder infringes any EU patent, Seller may at its option and expense (a) procure for Buyer the right to continue using the product, or (b) replace or modify the product so that it becomes non-infringing, or (c) grant Buyer a credit for such product, less a reasonable depreciation for use, damage, and obsolescence upon its return to Seller. Buyer agrees to pay all costs and expenses incurred by Seller in its defense
and the amount of any judgment against Seller, in any suit or proceeding against Seller based upon a claim of infringement, resulting solely from the Buyer combining any product furnished hereunder with any item not manufactured or furnished by Seller or from the sale or use of any such combination by Buyer.
Seller shall also indemnify Buyer’s Buyers and agents for such infringement, if and to the extent that Buyer has agreed so to indemnify them, but to no greater extent than Seller has indemnified Buyer herein and under the same conditions as set forth herein. In the event any product to be furnished under this Order is to be made in accordance with drawings, samples, or manufacturing specifications designated by Buyer and is not the design of Seller, Buyer agrees to defend, indemnify and hold Seller harmless to the same extent and subject to the same requirements as set forth in Seller’s obligation to Buyer as above.
The above is in lieu of any other indemnity or warranty, express or implied by Seller, with respect to intellectual property (patents, trade secrets, mask works, trademarks, copyrights, or the like).
In the event that any software or software documentation is provided to Buyer by Seller in any form whatsoever under an Order and no software license agreement governing this sale has been signed between Buyer and Seller, Buyer agrees to accept the terms and conditions stated below effective the date of the first delivery hereunder:
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities, and special tooling, which term includes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, other special equipment, and manufacturing aids and replacements thereof, used in the manufacture of products covered by an Order shall be and remain the property of Seller.
Seller retains all rights, title, and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the products.
The prices quoted herein do not include sums necessary to cover any taxes or duties including but not limited to Federal, State, Municipal excise, sales or use taxes or import duties upon the production, sales, distribution, or delivery of goods or furnishing of services hereunder.
Any taxes or duties that are due and owing hereunder shall be paid by the Buyer.
Accordingly, Seller reserves the right to revise its price after the execution of this Order between the parties to include any and all taxes or duties that may become due hereunder and Seller may invoice Buyer for the said additional amount. This clause shall survive the acceptance and complete performance of this Order by the parties herein.
Neither party shall assign this Order or any portion thereof without the advance, written consent of the other party, which consent shall not be unreasonably withheld.
The non-assigning party shall not have any obligation to an assignee of the assigning party unless such consent is obtained.
Failure by Seller to assert all or any of its rights upon any breach of this Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach nor shall any waiver be implied from the acceptance of any payment or service.
No waiver of any right shall extend to or affect any other right Seller may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.
Buyer and Seller agree and acknowledge that these Terms and Conditions with the Sales Contract and the Quote/Sales order represents the entire agreement between the Parties. In the event that the Buyer and Seller desire to change, add, or otherwise modify any terms of the sale, they shall do so in writing to be signed by both parties.
No waiver of any right shall extend to or affect any other right Seller may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
