These terms and conditions are deemed incorporated into each Interplex Purchase Order (with the exception of those issued by Interplex Soprec SAS). Except for product description, price, quantity, delivery location and schedule or otherwise agreed in writing by the Chief Supply Chain Officer of Interplex, the standard terms and conditions set forth herein shall prevail in the event of any conflict between the Order’s specific terms and provisions.
The General Conditions of Purchase defined herein are not applicable to Interplex Soprec SAS. For Interplex Soprec Terms and Conditions of Purchase, please click here.
In this document: (a) “Affiliate(s)” shall mean (i) in the case of Interplex and Supplier: any and all other companies, firms and legal entities with respect to which now or hereafter Interplex Engineering Limited or Supplier respectively, directly or indirectly holds 50% or more of the nominal value of the issued share capital or 50% or more of the voting power at general meetings or has the power to appoint a majority of directors or otherwise to direct the activities of such company, firm or legal entity; (b) “Agreement” shall mean the binding contract formed as described in Clause 2.1 herein; (c) “Goods” shall mean both tangible and intangible goods, including software and related documentation and packaging. References to Goods shall, where appropriate, be deemed to include Services; (d) “Interplex” shall mean the purchasing Affiliate of Interplex Engineering Limited identified in Interplex’ order and where applicable includes other Affiliates of Interplex; (e) “Services” shall mean the services to be performed by Supplier for Interplex under the Agreement; (f) “Supplier” shall mean each person or entity (including, where relevant, its Affiliates) that enters into the Agreement.
2.1. These General Conditions of Purchase, is deemed incorporated into the relevant Purchase Order issued by Interplex, set forth the terms under which Interplex’ offers to purchase Goods and/or Services from Supplier. When Supplier accepts Interplex’ offer, either by acknowledgement, delivery of any Goods and/or commencement of performance of any Services, a binding contract shall be formed. Such Agreement is limited to these General Conditions of Purchase as specified on the face and reverse of this document, the relevant Purchase Order and any attachments. Interplex does not agree to any proposed amendment, alteration, or addition by Supplier. The Agreement can be varied only in writing signed by Interplex. Any other statement or writing of Supplier shall not alter, add to, or otherwise affect the Agreement. In the event of conflicting terms, the terms in the Purchase Order shall prevail.
2.2. Interplex is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any additional or different terms or provisions that may appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or the like used by Supplier. Course of performance, course of dealing, and usage of trade shall not be applied to modify these General Conditions of Purchase.
2.3. All costs incurred by Supplier in preparing and submitting any acceptance of Interplex’ offer shall be for the account of Supplier.
3. TIME OF THE ESSENCE
Supplier shall immediately notify Interplex in writing when Supplier first has knowledge of any impending material shortage, governmental regulation, labor dispute or other event or impediment that could result in any delay in the delivery of the goods or performance of the services hereunder. If delivery or performance is not effected within the time stated in this Purchase Order, Interplex may, in addition to Interplex’s other rights and remedies, purchase the goods elsewhere or retain substitute performance of the services, charge Supplier for any resulting expense, loss or damage and/or cancel this Purchase Order.
4. DELIVERY OF GOODS
4.1. Unless expressly agreed otherwise in writing or indicated in the Purchase Order, all Goods shall be delivered ExWorks, CIF or if FCA (named port or place of departure) except that maritime transport shall be delivered FOB (named port of shipment) (as defined in the Incoterms 2010) final destination determined by Interplex and set out in the Purchase Order.
4.2. Delivery shall be completed as per the applicable Incoterm, but this shall not constitute acceptance of the Goods.
4.3. Supplier shall, where applicable, concurrently with the delivery of the Goods, provide Interplex with copies of all applicable licenses. Each delivery of Goods to Interplex shall include a packing list which contains at least (i) the applicable order number, (ii) the Interplex part number, (iii) the quantity shipped, and (iv) the date of shipment.
4.4. Unless otherwise agreed in writing, Supplier shall make no partial delivery or delivery before the agreed delivery date(s). Interplex reserves the right to refuse delivery of Goods and return same at Supplier’s risk and expense if Supplier defaults in the manner and time of delivery or in the rate of shipment. Interplex shall not be liable for any costs incurred by Supplier related to production, installation, assembly or any other work related to the Goods, prior to delivery in accordance with the Agreement.
4.5. Any design, manufacturing, installation or other work to be performed by or on behalf of Supplier under the Agreement shall be executed with good workmanship and using proper materials.
4.6. Supplier shall pack, mark and ship the Goods in accordance with sound commercial practices and Interplex’ specifications in such manner as to prevent damage during transport and to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for Interplex. Notwithstanding the provisions of the applicable Incoterms, Supplier shall be responsible for any loss or damage due to its failure to properly preserve, package, handle (before delivery as per the applicable Incoterm) or pack the Goods; Interplex shall not be required to assert any claims for such loss or damage against the common carrier involved.
4.7. In case of prospective failure to ship goods on the stated delivery date, Supplier shall give advanced Interplex notice of the failure as soon as practicable. If, due to Supplier’s failure to timely ship Products, the specified method of transportation would not permit Supplier to meet the delivery date, the goods affected shall be shipped by expedited means acceptable to Interplex and Supplier shall pay for any resulting increase in cost of freight.
4.8. Unless otherwise agreed in writing, Interplex shall have the right to reschedule delivery of any goods prior to delivery for up to a period of 120 days.
5. CHANGES TO GOODS
Supplier shall not, without prior written consent of Interplex, make any changes affecting Goods, including process or design changes, changes to manufacturing processes (including geographic location) changes affecting electrical performance, mechanical form or fit, function, environmental compatibility, chemical characteristics, life, reliability or quality of Goods or changes that could have significant impact upon Supplier’s quality system.
6. PERFORMANCE OF SERVICES
6.1. Supplier shall perform the Services with due skill and care, using the proper materials and employing sufficiently qualified staff.
6.2. Supplier shall be fully liable for the acts and omissions of any and all third parties with which it has contracted in connection with the Services.
6.3. Only written confirmation by Interplex shall constitute acceptance of the Services performed.
7. INSPECTION, TESTING, REJECTION OF GOODS
7.1. Inspection, testing of or payment for the Goods by Interplex shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by Interplex shall not release Supplier from any of its obligations, representations or warranties under the Agreement.
7.2. Interplex may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by Interplex is made on the premises of Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of Interplex’s inspection personnel.
7.3. If Interplex does not accept any of the Goods or Services, Interplex shall promptly notify Supplier of such rejection, and Clause 11 below shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from Interplex at its own expense or shall promptly perform the Services in accordance with Interplex’ instructions. If Supplier does not collect the Goods within said two (2) week period, Interplex may have the Goods delivered to Supplier at Supplier’s cost, or with the Supplier’s prior consent destroy the Goods, without prejudice to any other right or remedy Interplex may have under the Agreement or at law. Goods or Services not accepted but already paid by Interplex shall be reimbursed by Supplier to Interplex and Interplex shall have no payment obligation for any Good or Service not accepted by Interplex.
7.4. If, as a result of sampling inspection, any portion of a lot or shipment of like or similar items is found not to conform to the Agreement, Interplex may reject and return the entire shipment or lot without further inspection or, at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost of such inspection.
8. PRICES; INVOICES; PAYMENT
8.1. Unless provided otherwise in the Purchase Order, title in the Goods shall pass to Interplex at the time risk is transferred to Interplex pursuant to the applicable Incoterm.
8.2. All prices quoted in the Agreement shall be fixed prices. Supplier warrants that such prices are not in excess of the lowest prices charged by Supplier to other similarly situated customers for similar quantities of Goods or Services of like kind and quality.
8.3 Prices set out in each Purchase Order shall remain fixed until completion of the deliveries contemplated under each Purchase Order.
8.4. (i) All prices are gross amounts but exclusive of any value added tax (VAT), sales tax, GST, consumption tax or any other similar tax only. (ii) If the transactions as described in the Agreement are subject to any applicable VAT, sales tax, GST, consumption tax or any other similar tax, Supplier may charge VAT, sales tax, GST, consumption tax or any other similar tax to Interplex, which shall be paid by Interplex in addition to the prices quoted. Supplier is responsible for paying any applicable VAT, sales tax, GST, consumption tax or any other similar tax to the appropriate (tax) authorities. At or after the time delivery has been completed as per Clause 4.2 but ultimately within six months from delivery, Supplier shall issue an invoice meeting all applicable legal and fiscal requirements and which shall contain: (i) the Interplex purchase order number, and (ii) wording that shall allow Interplex to take advantage of any applicable “input” tax deduction. In addition, Supplier shall inform Interplex whether Interplex is allowed to apply for an exemption if and to the extent allowed under applicable law in such specific situation. (iii) In the event that Interplex is prohibited by law from making payments to Supplier unless Interplex deducts or withholds taxes there from and remits such taxes to the local taxing jurisdiction, then Interplex shall duly withhold such taxes and shall pay to Supplier the remaining net amount after the taxes have been withheld. Interplex shall not reimburse Supplier for the amount of such taxes withheld. When goods are delivered and/or services are provided or the benefit of services occurs within jurisdictions in which Supplier’s collection and remittance of taxes is required by law, Supplier shall have sole responsibility for payment of said taxes to the appropriate tax authorities. In the event Supplier is subsequently audited by any tax authority, Interplex will not be liable for the tax assessed.
8.5. Any license fees shall be included in the price.
8.6. Supplier shall issue invoices only after delivery of the goods and/or completion of the services ordered by Interplex hereunder. Original invoices shall include Purchase Order number, line item number, part number, and complete bill to address, description of items, quantities, unit price and extended totals. All costs invoiced to Interplex for reimbursement of expenses agreed under the terms of each Purchase Order shall be net of any applicable Goods and Services Taxes (“GST”) incurred on such expenses. Supplier agrees to invoice Interplex no later than one hundred eighty (180) days after shipment of goods or performance of the services ordered herein. Interplex will not be obligated to make payment against any invoices submitted after such period. Interplex may reject any invoice for non-compliance with any of the provisions of each Purchase Order. The time periods for any cash discount or payment shall commence on the later of the date the goods are received or the services are provided (as the case may be) or the date Interplex receives a proper invoice, in respect of such good or service.
8.7. If Supplier fails to fulfill any of its obligations under the Agreement, Interplex may suspend payment to Supplier upon notice to Supplier.
8.8. Interplex and any of its Affiliates shall at all times have the right to set‐off any amounts that any Interplex Affiliate owes to Supplier or its Affiliates under this Agreement with any amounts that Supplier or its Affiliates owes to any Affiliate of Interplex under the Agreement or any other agreement. Supplier unconditionally accepts all payments by way of setting off amounts between Supplier and its Affiliates and any Interplex Affiliate.
8.9. Supplier acknowledges and agrees that any amount to be paid by Interplex to Supplier may be paid on Interplex’ behalf by another Affiliate of Interplex and/or a third party designated by Interplex. Supplier shall treat such payment as if it were made by Interplex itself and Interplex’ obligation to pay to Supplier shall automatically be satisfied and discharged in the amount paid by such entity or third party.
9.1. Supplier represents and warrants to Interplex that:
(a) all Goods are suitable for the intended purpose and shall be new, merchantable, of good quality and free from all defects in design, materials, construction and workmanship;
(b) all Goods strictly comply with the specifications, approved samples and all other requirements under the Purchase Order and/or Agreement;
(c) all required licenses in relation to the Goods are and shall remain valid and in place, that the scope of such licenses shall properly cover the intended use of the Goods and all such licenses shall include the right to transfer and the right to grant sublicenses;
(d) all Goods shall be free from any and all liens and encumbrances; (i) all Goods have been designed, manufactured and delivered, and all Services have been provided in compliance with all applicable laws (including labor laws), regulations, EC Directive 2001/95 on General Product Safety . (ii) Goods and Services are provided with and accompanied by all information and instructions necessary for proper and safe use;
(e) all its packaging, components and or Goods supplied to Interplex comply with any written packing requirement, including any safety requirement pertaining to the transportation of goods.
(f) the Goods will be accompanied by written and detailed specifications of the composition and characteristics of the Goods, to enable Interplex to transport, store, process, use and dispose of such Goods safely and in compliance with law.
(h) all Goods do not violate or infringe any third party domestic or foreign patent, copyright (including portrait rights and moral rights), trade secret, trademark or other intellectual property rights.
9.2. These warranties are not exhaustive and shall not be deemed to exclude any warranties set by law, Supplier’s standard warranties or other rights or warranties which Interplex may be entitled to. These warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods, and shall extend to Interplex and its customers. Acceptance of, or payment for, all or any part of the Goods or Services furnished under the Agreement shall not be deemed to be a waiver of Interplex’ right to cancel or return or reject all or any part thereof because of failure to conform to order or by reason of defects, latent or patent, or other breach of warranties, or to make any claim for damages, including manufacturing costs and loss of profits or other special damages incurred by Interplex.
9.3. Without prejudice to any other rights accruing under any Purchase Agreement or law, the warranties set forth in Article 9, will subsist for a period of 36 months from the date of commencement of mass production, or such other period as agreed in the Agreement or Purchase Order (the “Warranty Term”). Goods repaired or replaced within the Warranty Term are warranted for the remainder of the
original Warranty Term of said Goods, or 12 months following the delivery date of such repaired or replaced Goods, whichever is longer.
9.4 Without prejudice to any other rights accruing under any Purchase Agreement or law and the warranties set forth in Article 9, in the event any Goods supplied pursuant to a Purchase Order experience one of more of the following: (i) the same or similar defect at a rate of one percent (1%) or more in any given 60 days period, (ii) the same or similar defect at a rate of one percent (1%) or more of total purchases, (iii) recalls, or (iv) safety defects, hereinafter referred to as “Epidemic Defects”. For Epidemic Defects, Supplier will, at Interplex’s discretion; (i) refund or credit the Product Price, or replace or repair the Products at no charge in a timely manner, and (ii) reimburse Interplex for all actual and reasonable expenses incurred by Interplex related to Epidemic Defects, including, without limitation, costs associated with repair or replacement, field costs, customer related expenses, problem diagnosis, and field and finished goods inventory related costs for all parts shipped within the previous 48 months. Supplier will commence such performance within five (5) calendar days of Interplex’s notice to Supplier of an Epidemic Defect. The provisions set forth in this Article 9.5, “Epidemic Defects” will survive after termination or expiration of any Purchase Agreement or fulfillment of each Purchase Order and will remain in effect until expiry.
10. OPEN SOURCE SOFTWARE WARRANTY
Unless the inclusion of same is specifically authorized in writing by duly authorized officers of Interplex and unless otherwise stated in the Agreement, Supplier represents and warrants that the Goods do not include any portion of any Open Source Software. As used herein, “Open Source Software” shall mean:
(a) any software that requires as a condition of use, modification and/or distribution of such software, that such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; (iii) may only be redistributed free from enforceable intellectual property rights; and/or
(b) any software that contains, is derived from, or statically or dynamically links to, any software specified under 10(a).
11. NON‐CONFORMITY OF GOODS OR SERVICES
11.1. If any Goods or Services are defective or otherwise do not conform to the requirements of the Agreement, Interplex shall notify Supplier and may, without prejudice to any other right or remedy available to it under the Agreement or at law, at its sole discretion:
(a) claim a full refund of the price paid to Supplier; or
(b) require Supplier promptly to remedy the non‐conformance or to replace the nonconforming Goods with Goods meeting the specifications.
11.2. Supplier shall bear all cost of repair, replacement and transportation of the nonconforming Goods, and shall reimburse Interplex in respect of all costs and expenses (including, without limitation, inspection, handling and storage costs) reasonably incurred by Interplex in connection therewith.
11.3. Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof.
12. OWNERSHIP AND INTELLECTUAL PROPERTY
12.1. All machinery, tools, drawings, specifications, raw materials and any other property or materials furnished to Supplier by or for Interplex, or paid for by Interplex, for use in the performance of the Agreement, shall be and remain the sole exclusive property of Interplex and shall not be furnished to any third party without Interplex’ prior written consent, and all information with respect thereto shall be confidential and proprietary information of Interplex. In addition, any and all of the foregoing shall be used solely for the purpose of fulfilling orders from Interplex, shall be marked as owned by Interplex, shall be held at Supplier’s risk, shall be kept in good condition and, if necessary, shall be replaced by Supplier at Supplier’s expense, shall be subject to periodic inventory check by Supplier as reasonably requested from time to time by Interplex, and shall be returned promptly upon Interplex’ first request. Except as otherwise expressly agreed in writing, Supplier agrees to furnish at its own expense all machinery, tools, and raw materials necessary to perform its obligations under the Agreement.
12.2. Supplier represents and warrants to Interplex that the Goods and Services do not and shall not, alone or in any combination, infringe or violate any patent, trademark, copyright (including portrait rights and moral rights), trade name, trade secret, license or other proprietary right of any other party (including Supplier’s employees and subcontractors), and (ii) that it holds all rights, title and interest necessary to license to Interplex any intellectual property right (including patents, trademarks, copyrights, trade names, trade secret, licenses or other proprietary right) of every component of the Goods and/or Services provided to Interplex, as a whole or as integrated part of another Good/Service, including but not limited to machinery, tools, drawings, designs, software, demos, moulds, specifications or pieces.
12.3. Interplex shall retain all rights in any samples, data, works, materials and intellectual and other property provided by Interplex to Supplier. All rights in and titles to deliverables (including future deliverables) and other data, reports, works, inventions, know‐how, software, improvements, designs, devices, apparatus, practices, processes, methods, drafts, prototypes, products and other work product or intermediate versions thereof produced or acquired by Supplier, its personnel or its agents for Interplex under the Agreement (the “Work Product”) shall become Interplex’ property. Supplier shall execute and deliver any documents and do such things as may be necessary or desirable in order to carry into effect the provisions of this Clause 12.3.
12.4. Supplier shall not have any right, title or interest in or to any of Interplex’ samples, data, works, materials, trademarks and intellectual and other property nor shall the supply of Goods and/or Services alone or in any combination, or the supply of packaging containing Interplex’ trademarks or trade names give Supplier any right or title to these or similar trademarks or trade names. Supplier shall not use any trademark, trade name or other indication in relation to the Goods or Services alone or in any combination without Interplex’ prior written approval and any use of any trademark, trade name or other indication as authorized by Interplex shall be strictly in accordance with the instructions of and for the purposes specified by Interplex.
12.5 Supplier warrants that the Work Product shall observe all generally recognized and applicable rules of product developmentand safety standards and the the Work Products are created free from any third party rights. Supplier will provide Interplex with any documents prepared such as drawings created in writing in the form and manner required by Interplex, including but not limited to CAD data.
12.6. Supplier shall not, without Interplex’ prior written consent, publicly make any reference to Interplex, whether in press releases, advertisements, sales literature or otherwise.
13. INTELLECTUAL PROPERTY INDEMNIFICATION
13.1. Supplier shall indemnify and hold harmless Interplex, its Affiliates, agents and employees and any person selling or using any of Interplex’ products in respect of any and all claims, damages, costs and expenses (including but not limited to loss of profit and reasonable attorneys’ fees) in connection with any third party claim that any of the Goods or Services alone or in any combination or their use infringes any patent, trademark, copyright (including portrait rights and moral rights), trade name, trade secret, license or other proprietary right of any other party or any intellectual property right, or, if so directed by Interplex, shall defend any such claim at Supplier’s own expense.
13.2. Interplex shall give Supplier prompt written notice of any such claim, provided, however, any delay in notice shall not relieve Supplier of its obligations hereunder except to the extent it is prejudiced by such delay. Supplier shall provide all assistance in connection with any such claim as Interplex may reasonably require.
13.3. If any Goods or Services alone or in any combination, supplied under the Agreement are held to constitute an infringement or if their use is enjoined, Supplier shall, as directed by Interplex, but at its own expense: either
(a) procure for Interplex or customers the right to continue using the Goods or Services alone or in any combination; or
(b) replace or modify the Goods or Services alone or in any combination with a functional, non‐ infringing equivalent.
13.4. If Supplier is unable either to procure for Interplex the right to continue to use the Goods or Services alone or in any combination or to replace or modify the Goods or Services alone or in any combination in accordance with the above, Interplex may terminate the Agreement and upon such termination, Supplier shall reimburse to Interplex the price paid, without prejudice to Supplier’s obligation to indemnify Interplex as set forth herein.
Supplier shall indemnify and hold harmless Interplex, its Affiliates, agents and employees and anyone selling or using any of Interplex’ products, from and against all suits, actions, legal or administrative proceedings, claims, demands, damages, judgments, liabilities, interest, attorneys’ fees, costs and expenses of whatsoever kind or nature (including but not limited to special, indirect, incidental, consequential damages), whether arising before or after completion of the delivery of the Goods or performance of the Services covered by the Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, breach of any of the provisions of this Agreement, or negligence of Supplier, or of anyone acting under its direction or control or on its behalf, in connection with Goods or Services furnished by Supplier to Interplex under the Agreement.
15. COMPLIANCE WITH LAWS
Supplier shall at all times comply with all laws, rules, regulations, and ordinances applicable to the Agreement, including, but not limited to, all fair labor, equal opportunity, and environmental compliance laws, rules, regulations, and ordinances. Supplier shall furnish to Interplex any information required to enable Interplex to comply with any applicable laws, rules, and regulations in its use of the Goods and Services at Interplex’s place of business as shown in the Purchase Order without regard to conflict oflaws provisions thereof. If Supplier is a person or legal entity doing business in the United States, and the Goods and/or Services are sold to Interplex under federal contract or subcontract, all applicable procurement regulations required by federal statute or regulation to be inserted in contracts or subcontracts are hereby incorporated by reference. Additionally, if Supplier is a person or legal entity doing business in the United States, the Equal Employment Opportunity Clauses set forth in 41 Code of Federal Regulations, Chapters 60‐1.4, 60‐250.5, and 60‐741.5, are hereby incorporated by reference.
16. PERSONAL DATA
16.1. Where Supplier in the performance of the Agreement processes personal data (as defined by applicable law) of Interplex’ employees, contractors or business partners (hereafter collectively referred to as “Personal Data”), then Supplier agrees and warrants that Supplier shall: (a) comply with all privacy and data protection law and regulations applicable to its Services. (b) process Personal Data only insofar necessary for the Services rendered to Interplex and as permitted or required by law; (c) keep the Personal Data confidential; (d) take appropriate technical, physical and organizational security measures to protect the Personal Data against loss, unauthorized or unlawful processing; and (e) promptly inform Interplex of any actual or suspected security incident involving the Personal Data.
16.2. To the extent that Supplier allows a (sub)contractor to process the Personal Data, Supplier shall ensure that it binds such (sub)contractor to obligations which provide a similar level of protection as this Clause 16.
16.3. Supplier shall, upon the termination of the Agreement, securely erase or destroy all records or documents containing the Personal Data. Supplier accepts and confirms that it is solely liable for any unauthorized or illegal processing or loss of the Personal Data, if Supplier fails to erase or destroy the Personal Data upon termination of the Agreement.
16.4 Supplier shall indemnify and hold harmless Interplex, their officers, agents and personnel from any damages, fines, losses and claims arising out of a breach of Clauses 16.1, 16.2 and 16.3.
17. EXPORT CONTROLS COMPLIANCE
17.1 Supplier agrees and warrants that it will comply with all applicable international and national export control laws and regulations and it will not export or re‐export, directly or indirectly, any information, goods, software and/or technology to any country for which the European Union or the United States of America or any other country, at the time of export or re‐export, requires an export license or other governmental approval, without first obtaining such license or approval.
17.2 Supplier agrees to inform Interplex in writing whether or not the supplied information, goods, software and/or technology is US controlled and/or controlled under the export control laws of its own country, and if so, Supplier will inform Interplex about the extent of the restrictions (including but not limited to export control legal jurisdiction, export control classification numbers, export control licenses and/or CCATS as applicable).
17.3 Supplier shall obtain all international and national export licenses or similar permits required under all applicable export control laws and regulations and shall provide Interplex with all information required to enable Interplex and its customers to comply with such laws and regulations.
17.4 Supplier agrees to indemnify and hold Interplex harmless from any claims, liabilities, penalties, forfeitures, and associated costs and expenses (including attorney’s fees), which Interplex may incur due to Supplier’s non‐compliance with applicable laws, rules and regulations. Supplier agrees to notify Interplex promptly of Supplier’s receipt of any such notice of a violation of any export control related law, rule or regulation, which may affect Interplex.
18. CUSTOMS COMPLIANCE
18.1 On an annual basis, or upon earlier request of Interplex, Supplier shall provide Interplex with a supplier declaration of origin in relation to the Goods sufficient to satisfy the requirements of (i) the customs authorities of the country of receipt, and (ii) any applicable export licensing regulations, including those of the United States. In particular, the declaration should explicitly mention whether the Goods, or part thereof, have been produced in the United States or originate in the United States. Dual‐use Goods, or otherwise classified Goods supplied by Supplier should be clearly identified by their classification code.
18.2 For all Goods that qualify for application of Regional or Free Trade Agreements, General Systems of Preference or other preferential arrangements, it is the responsibility of the Supplier to deliver products with the appropriate documentary evidence (e.g. Supplier’s declaration, preferential origin certificate/invoice declaration) to confirm the preferential origin status.
18.3 Supplier shall mark every Good (or the Good’s container if there is no room on the Good itself) with the country of origin. Supplier shall, in marking the Goods, comply with the requirements of the customs authorities of the country of receipt. If any Goods are imported, Supplier shall when possible allow Interplex to be the importer of record. If Interplex is not the importer of record and Supplier obtains duty drawback rights to the Goods, Supplier shall, upon Interplex request, provide Interplex with documents required by the customs authorities of the country of receipt to prove importation and to transfer duty drawback rights to Interplex and which shall, without limitation, include appropriate certification stating the country of origin for Products, sufficient to satisfy requirement of (i) the customs authorities of the country of receipt and (ii) any applicable export licensing regulations.
19. LIMITATION OF LIABILITY
19.1. Neither Party excludes or limits its liability for death or personal injury arising from its own negligence, fraud, or for any liability that cannot by law be excluded or limited.
19.2 Subject to Clause 19.1, IN NO EVENT SHALL INTERPLEX BE LIABLE UNDER ANY THEORY OF LIABILITY, FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHICH INCLUDES WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, LOST BUSINESS OPPORTUNITIES, LOSS OF IMAGE OR LOST DATA, EVEN IF INTERPLEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES and in no event shall Interplex be liable to Supplier, its successors or assigns for damages in excess of the amount due to Supplier for complete performance under the Agreement, less any amounts already paid to Supplier by Interplex.
20. FORCE MAJEURE
In the event that Supplier is prevented from performing any of its obligations under the Agreement for reason of force majeure (being an event unforeseeable and beyond the control of Supplier) and Supplier has provided sufficient proof for the existence of the force majeure, the performance of the obligation concerned shall be suspended for the duration of the force majeure. Interplex shall be entitled to terminate the Agreement with immediate effect by written notice to Supplier, immediately if the context of the non‐performance justifies immediate termination, and in any event if the circumstance constituting force majeure endures for more than thirty (30) days and, upon such notice, Supplier shall not be entitled to any form of compensation in relation to the termination. Force majeure on the part of Supplier shall in any event not include shortage of personnel or production materials or resources, strikes, not officially declared epidemic or pandemic, breach of contract by third parties contracted by Supplier, financial problems of Supplier, nor the inability of Supplier to secure the necessary licenses in respect of software to be supplied or the necessary legal or administrative permits or authorizations in relation to the Goods or Services to be supplied.
21. SUSPENSION AND TERMINATION
21.1. Without prejudice to any other right or remedy available to Interplex under the Agreement or at law, Interplex shall be entitled at its discretion to suspend the performance of its obligations under the Agreement in whole or in part or to terminate the Agreement in whole or in part by means of written notice to Supplier in the event that:
(a) Supplier files a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, assignment for the benefit or creditors or similar proceeding;
(b) Supplier becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding
(c) Supplier ceases or threatens to cease to carry on business in the ordinary course;
(d) Supplier breaches any of its obligations under the Agreement or Interplex’, in its reasonable discretion, determines that Supplier cannot or shall not deliver the Goods or perform the Services as required, or
(e) Supplier fails to provide adequate assurance of performance following request by Interplex.
21.2. Interplex shall not be liable to Supplier by virtue of such termination.
22.1. Supplier shall treat all information provided by or on behalf of Interplex or generated by Supplier for Interplex under the Agreement as confidential. All such information shall be used by Supplier only for the purposes of the Agreement. Supplier shall protect Interplex’ information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of Interplex and Supplier shall, upon Interplex’ demand, promptly return to Interplex all such information and shall not retain any copy thereof.
22.2. The existence and the contents of any Purchase Agreement and each Purchase Order shall be treated as confidential by Supplier.
23.1. Supplier will maintain comprehensive or commercial general liability insurance (including products liability, property damage and personal injury liability, and any other liability as may be requested by Interplex) with, unless otherwise agreed by Interplex, a minimum limit of five million Euro for claims of bodily injury, including death, and any other damages that may arise from use of the Goods or Services or acts or omissions of Supplier under the Agreement. Such insurance policies will be written with appropriately licensed and financially responsible insurers. Supplier shall inform Interplex of any cancellation or reduction in coverage with a minimum of 30 days prior written notice. Certificates of insurance evidencing the required coverage and limits and insurance policies shall be furnished to Interplex upon Interplex‘s request.
23.2. Supplier shall provide Goods and render Services hereunder as an independent contractor and not as an agent of Interplex and nothing contained in the Agreement is intended to create a partnership, joint venture or employment relationship between the parties irrespective of the extent of economic dependency of Supplier on Interplex.
23.3. Supplier shall not subcontract, transfer, pledge or assign any of its rights or obligations under the Agreement without the prior written consent of Interplex. Any such pre‐approved subcontracting, transfer, pledge or assignment shall not release Supplier from its obligations under the Agreement. Interplex shall be entitled at any time to assign, delegate or subcontract this Order or any obligations hereunder to any third party without Supplier’s prior written consent.
23.4. The rights and remedies reserved to Interplex are cumulative and are in addition to any other or future rights and remedies available under the Agreement, at law or in equity.
23.5. Supplier shall provide Interplex written notice of all product discontinuances twelve (12) months prior to the last order date, including as a minimum Interplex part numbers, substitutions, and last order and shipment dates.
23.6. Neither the failure nor the delay of Interplex to enforce any provision of the Agreement shall constitute a waiver of such provision or of the right of Interplex to enforce each and every provision of the Agreement. No course or prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of the Agreement. No waiver, consent, modification or amendment of the terms of the Agreement shall be binding unless made in a writing specifically referring to the Agreement signed by Interplex and Supplier.
23.7. In the event that any provision(s) of these General Conditions of Purchase and of the Agreement shall be held invalid, unlawful or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions of the Agreement. Any such provision held invalid, unlawful or unenforceable, shall be substituted by a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
23.8. All terms and conditions of the Agreement which are destined, whether express or implied, to survive the termination or the expiration of the Agreement, including but not limited to Warranty, Intellectual Property, Confidentiality and Personal Data, shall survive.
23.9. The Agreement shall be governed by and construed in accordance with the laws of the country or state in which the Interplex ordering entity is located, and as shown in the Purchase Order, without regard to conflict of law provisions thereof as applicable.
23.10. Supplier and Interplex each consents to the exclusive jurisdiction of the competent courts in (i) the country or state in which the Interplex ordering entity is located and as shown in the Purchase Order; or (ii), at the option of Interplex, the jurisdiction of the entity of Supplier to which the order was placed, or (iii), at the option of Interplex, for arbitration in which case Clause 23.11 applies. Supplier hereby waives all defenses of lack of personal jurisdiction and forum non‐convenience.
23.11. If so chosen by Interplex in accordance with Clause 23.10, any dispute, controversy or claim arising out of or in connection with this Agreement, or their breach, termination or invalidity shall be finally settled solely under the International Chamber of Commerce Rules of arbitration, which Supplier and Interplex declare to be known to them. Supplier and Interplex agree that: (i) the appointing authority shall be the ICC‐International Chamber of Commerce of Paris, France; (ii) there shall be three (3) arbitrators; (iii) arbitration shall take place in the jurisdiction of the Interplex ordering entity or, at the option of Interplex, the jurisdiction of the Supplier’s entity having received the order; (iv) the language to be used in the arbitration proceedings shall be English; and (v) the material laws to be applied by the arbitrators shall be the laws as determined under Clause 23.9.
23.12. The United Nations Convention on International Sale of Goods shall not apply to the Agreement.
For Interplex Soprec Only
Revised: April 2019
VALIDITY OF PROPOSAL
1. The acceptance by any company which is a member of the Interplex Group (“Seller”) of any order (“Order”) is always subject to and governed by these Terms and Conditions and none other. Any additional, inconsistent or different terms and conditions contained in Buyer’s purchase order or other documents supplied by Buyer are expressly rejected. All Orders received from a customer (“Buyer”) are subject to written acceptance by Seller. Such acceptance, together with any documents incorporated therein expressly or by reference shall constitute the entire agreement between the parties and may not be changed except in writing signed by both Buyer and Seller.
VALIDITY OF PROPOSAL
2. All prices quoted are F.O.B. Seller’s facility as specified in the Proposal, freight, collect, unless otherwise specifically agreed to in writing. Title to and risk of loss for products shipped pursuant to this proposal will pass to the Buyer when delivered to a common carrier at Seller’s facility.
3. If for any reason cancellation should be necessary, Sellers charges will be based on the cost of material ordered or on hand and on the amount of other work performed, plus profit.
QUOTATIONS AND PRICES
4. This quotation automatically expires 60 days from date hereof unless previously terminated by Seller’s written notice. Prices are based on manufacturing the complete order at one time, unless specifically agreed to in writing. Deliveries scheduled more than 60 days from the date hereof are subject to the provision of those terms and conditions captioned “Escalation.”
5. All quotations are based on Buyer accepting over-run or under-ran on each individual item not exceeding 10% of quantities ordered. Where a closer control of quantity is required, specific written arrangements between Buyer and Seller must be made.
6. Packaging will be in accord with Seller’s standard practice (bulk), sufficient to assure safe arrival unless otherwise requested on inquiry or blueprint and accepted by the Seller.
7. If Seller is to furnish and use tooling in the manufacture of goods for the Buyer, the following shall apply to that tooling, unless otherwise agreed to in writing by Seller and Buyer.
a) Tools will be retained by Seller for Buyer’s exclusive use without storage charge.
b) Seller reserves the right to discontinue the use of tools as obsolete when in Seller’s opinion they are worn out or have not been used for two years Buyer will be given thirty days written notice of Seller’s intention to dispose of tools in accordance with Buyer’s Instructions. If such instructions are not received by Seller from Buyer within such thirty day period, Seller may dispose of such obsolete tools without liability or further obligation to Buyer.
c) Seller reserves the right to add a 30% charge to total tooling costs on tools released to Buyer, which charge Buyer will promptly pay Seller.
d) Seller shall have a lien upon and right of possession to all the Buyer’s permanent tools for any payments due the Seller by the Buyer, including in the event of default, all costs of collection together with reasonable attorney’s fees.
e) Unless otherwise specified, Seller will not carry insurance of any type on Buyer’s tools, fixtures, etc. Seller shall be held harmless for any injury or damage to such materials which occurs through no fault of the Seller.
f) All processes and manufacturing techniques, developed, created, and utilized by Seller for the production of any such tooling or the manufacturing processes for the Product shall belong to Seller.
g) Notwithstanding anything to the contrary contained herein or elsewhere, Buyer agrees and acknowledges that Seller shall always own and control all right, title and interest in and to any and all of Seller’s ideas, designs, concepts, methods, trade secrets and other intellectual property as well as all of Seller’s proprietary information with respect to any tooling sold by Seller including, without limitation, tooling for solder bearing leads, press fit pins and semi-conductor packaging products and materials.
8. Minimum orders or billing may apply as referenced on the quotation and/or order acknowledgement.
9. Any Manufacturer’s Taxes, Retailer’s Occupation Tax, Use Tax, Sales Tax, Excise Tax, Duty, Custom, inspection or Testing Fees, or other tax, fee or charge of any nature whatsoever, imposed by a government authority on or measured by any transactions between Seller and Buyer, shall be paid by Buyer in addition to the prices quoted or invoices. In the event Seller shall be required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore.
Buyer’s orders must state the existence and amount of any such tax, fee or charge which it shall be the Seller’s responsibility to collect from Buyer and pay; but Buyer’s failure to state any such tax, fee or charge shall not excuse Buyer from paying or reimbursing Seller.
In the event any Tax is charged to the Seller on tools retained by the Seller pursuant to Paragraph 7 of this Quotation, Seller will invoice Buyer and Buyer will reimburse Seller for the payment of such tax.
PAYMENT TERMS AND BUYER’S CREDIT
10. Payment terms are net 30 days after date of invoice unless otherwise agreed in writing. Those terms shall apply to partial as well as complete shipments of products. A FINANCE CHARGE OF 1.5% PER MONTH (18% ANNUAL RATE) WILL BE CHARGED ON ALL PAST DUE ACCOUNTS. Buyer will furnish reasonably adequate information on Buyer’s credit standing within fifteen days after Seller’s request thereof. If Buyer fails to furnish the requested credit information Seller may, at its option, ship the product C.O.D. or withhold shipment until such credit information is supplied. In the event the shipment is withheld until receipt of such information, the amounts due shall be subject to change in price in accordance with the provisions captioned “Escalation”.
11. Prices set forth herein are firm for a period of sixty days from the date hereof. Such pricing shall be adjusted upward to that in effect at the time of shipment if shipment is made more than sixty days from the date hereof in those circumstances where manufacture is delayed through no fault of Seller. Prices on Product manufactured and/or shipped more than sixty days from the date hereof will be adjusted upward in the event the Seller’s cost of labour or material increases from those costs used in formulating prices herein set forth.
12. All invoices shall be due and payable when submitted for payment in accordance with the provisions of those Terms and Conditions captioned “Payment Terms.” No withholding of funds, backcharges or credits against amounts otherwise due Seller will be permitted unless specifically agreed to in writing. Settlement of any amounts due to Buyer will be negotiated as separate items and not as offsets against amounts otherwise due to Seller from Buyer for Products sold hereunder.
13. Should shipments be held beyond scheduled date for convenience of Buyer, goods will be billed and charges will be made for warehousing, trucking, and other expenses incident to such delay. Reasonable and sufficient care is taken by Seller in crating its goods. Seller cannot be held responsible for breakage after having received “in good order” receipts from the transportation carrier. All claims for loss and damage must be made by Buyer to
the carrier, but Seller will assist insofar as practical in securing satisfactory adjustment of such claims.
Claims for shortages or other errors or any breach must be made in writing to Seller within 30 days after receipt of shipment, and failure to give such notice shall constitute unqualified acceptance of goods and a waiver of all claims by Buyer.
Seller is specifically authorized to send the goods to the Buyer. Method and route of shipment will be per Buyer’s written instructions. If not specified, Seller will determine the most appropriate method and route. In such cases, the selection of method and route by Seller shall conclusively be deemed reasonable having regards to the nature of the goods and other circumstances of the case.
14. All quoted delivery schedules are approximate and are dependent upon prompt receipt from Buyer of all blueprints (4 copies) and other information necessary for the design and manufacture by Seller. When requested by Buyer, sample parts manufactured with new tooling will be furnished by Seller. Within a reasonable time, not to exceed 7 days, after receipt and inspection of sample parts. Buyer will either a) approve sample parts, or b) state in writing necessary modifications to tooling. If sample part is approved, Seller will commence manufacturing as scheduled; if modification of tooling is required, Seller will modify tooling and resubmit sample parts. Thereafter, Seller and Buyer will follow sample procedure as described in this Paragraph 14 and the delivery schedule originally quoted by Seller will then be modified accordingly. No work will proceed after Seller or Buyer requests deviations from specifications until Buyer sends written approval.
COMPLETION – DELAYS
15. Every reasonable effort shall be made by Seller to fulfill the order within the time estimated; no liability shall be incurred by Seller for delayed performance or delivery. If the Buyer requests that the goods be manufactured and shipped on the date (or dates), earlier than originally agreed to by Seller and Buyer, and the Seller agrees to the earlier date (or dates), any increase in cost of performance incurred by the Seller resulting from earlier manufacture and shipment will be included in an adjustment of the purchase price to be made by the Seller and will be paid by the Buyer.
Seller shall not be liable for any damage as a result of any delay due to any cause beyond Seller’s control, including, without limitation, any Act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slow down, war, riot, flood, delay in transportation and inability to obtain necessary labor, material or manufacturing facility. In the event of such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. The acceptance of goods when delivered shall constitute a waiver of claims for damages caused by any delay within Seller’s control.
RETURN OR REWORK OF GOODS
16. Claims by the Buyer must be submitted within 30 days of receipt of shipment. No goods or parts therefore may be returned by Buyer without first obtaining Seller’s written permission and a Customer Discrepancy Material number. Parts must be returned within 15 days after permission is received. Buyer may elect to rework goods rather than return to Seller, and if Seller agrees, Seller will reimburse Buyer for such rework.
Seller’s agreement to Buyer’s rework must be in writing and, in no event, can exceed the Buyer’s estimated rework charge. Under no circumstances will Seller’s liability be in excess of the value of the Product sold to Buyer.
PATENT INDEMNITY (PATENT INDEMNIFY BY BUYER TO SELLER)
17. To the extent that Products delivered hereunder are manufactured pursuant to designs furnished by Buyer, Buyer agrees to indemnify Seller and hold Seller harmless from all legal expenses which may be incurred, as well as all damages and costs, which may finally be assessed against Seller in any action for infringement of any Patent. Seller agrees promptly to inform the Buyer of any claim for liability made against Seller with respect to such Products, and Seller agrees to co-operate with the Buyer in every way reasonably available to facilitate the defense against any such claim.
18. In the event that any raw material specified for incorporation into the Product covered by this Proposal shall become unavailable, Seller shall notify Buyer and Buyer may direct Seller in writing to substitute available material for that originally specified, it being understood and agreed that Buyer shall assume any and all consequences resulting from such substitution.
19. Buyer shall not assign or transfer any rights or obligations arising from any contract resulting from this Proposal or monies payable thereunder, without the prior written consent of Seller and any such assignment or transfer made without written consent shall be null and void.
20. The validity, interpretation, and performance of these Terms and Conditions, as well as any contract which may result between the parties, shall be governed by the laws of the country and/or state of the Interplex company referencing these terms and conditions.
WARRANTY AND LIMITATION OF LIABILITY
21. For products supplied without prior approval of a sample by Buyer, Seller warrants components manufactured or supplied by it to be free from defects in material and workmanship when shipped from Seller’s facility. If parts shall be proved to Seller’s satisfaction to be defective, such parts shall, at Seller’s sole option be repaired or replaced. This warranty shall not apply:
a) To components supplied by Buyer;
b) To goods or parts and components thereof which have been subjected to negligence, accident or damage by circumstances beyond the control of Seller and, in particular, to damage incurred as a result of prolonged or improper storage by the Buyer.
c) For products supplied after prior approval of a sample by Buyer, Seller warrants that all parts supplied will be substantially identical to such samples. The warranty on sampled parts is subject to the same restrictions as that set forth above with respect to non-sample products.
DISCLOSURE OF CONFIDENTIAL ENGINEERING INFORMATION
22. All information contained in any email and/or any engineering drawings or models, and/or any description of manufacturing processes, created by Interplex and submitted to the recipient thereof in connection with proposals for product manufacture, constitute Confidential and Proprietary Information owned directly by the Interplex Industries Group. Sharing this information with the recipient does not constitute a transfer of ownership or authorize disclosure by the recipient, or confer any Intellectual Property rights of any nature therein. Such information is intended only for evaluation purposes and should not be shared with any individual or entity not directly bound by a confidentiality agreement with the member of the Interplex Group submitting the same. If this information is not utilized by the recipient, other than in connection with a mutually agreeable business relationship with a member of the Interplex Group, then it must be returned to the sender immediately on demand, and not used for any other purpose.
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (“ITAR”)
23. Buyer shall notify Seller in writing, to the extent any goods in an Order are believed to be “ITAR Defense Articles” (i.e., goods, including technical data, which are designated on the United States Munitions Control List, Part 121 of Title 22 Code of Federal Regulations, or which are articles specially designed or modified for a military purpose that may be designated on the United States Munitions Control List). Buyer shall be liable to Seller for any expenses, including penalties and legal fees, incurred by Seller which may result from Buyer’s failure to notify Seller of any goods the subject of an Order which are ITAR Defense Articles, including any underlying technical data transmitted to Seller by Buyer in connection with such Order.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESSED AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER WITH RESPECT TO PARTS MANUFACTURED OR SUPPLIED BY SELLER OR SERVICES RENDERED BY IT.
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, SELLER SHALL NOT BE LIABLE FOR INCIDENTAL AND CONSEQUENTIAL DAMAGES, AND, IN SUBSTITUTION FOR ALL REMEDIES WHICH BUYER MAY HAVE UNDER ANY APPLICABLE LAW. BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER FOR ANY BREACH OF WARRANTY OR ANY OTHER BREACH RELATING TO GOODS DELIVERED PURSUANT HERETO SHALL BE FOR REPAIR OR REPLACEMENT (AT SELLER’S OPTION) OF THE GOODS OR PARTS EFFECTED BY SUCH BREACH. THESE TERMS AND CONDITIONS SUPERCEDE ANY OTHER TERMS AND CONDITIONS RELATING TO THE PURCHASE ORDER.