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
In these Standard Terms and Conditions of Sale (“Terms”), “Seller” shall mean the Interplex legal entity providing goods, material, equipment and/or services (collectively “Products”) to the purchaser of such Products (“Customer”).
- APPLICATION. Unless Customer and Seller have signed a specially negotiated agreement, these Terms shall apply to any accompanying quotation for sale of Products by Seller to Customer, or any document to which they are attached or referenced, whether gratuitous or otherwise, and are deemed to be immediately incorporated into such quotation or document. Each quotation is expressly made conditional on Customer’s acceptance of these Terms without deviation. These Terms are also deemed to prevail over any standard terms and conditions of the Customer. Seller hereby objects to and rejects any additional or different terms proposed by Customer, including those terms contained in Customer’s purchase order, award letter, order release, scheduling document, unless Seller expressly agrees to such terms in writing. Seller’s fulfilment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Every variation, cancellation or waiver of these Terms or any part thereof is subject to Seller’s right to make an adjustment in the price of the Products to cover Seller’s estimated cost to implement such change and such change must be in writing and duly signed by an authorised representative of Seller (including such other formalities as may be required under any applicable law). Notice is hereby given that no other person has or will be given any authority whatsoever to agree to any variation, cancellation or waiver of these Terms. Notwithstanding the foregoing, if there is a conflict between these Terms and (i) the terms of a specially negotiated agreement or (ii) quotation for sale of Products, the terms and provisions of such specially negotiated agreement or quotation for sale of Products shall prevail.
- ACCEPTANCE. Each quotation is available for Customer’s acceptance within the period or by the date specified in such quotation or, when no period or date is specified, within thirty (30) days from the date of the quotation. Notwithstanding the foregoing, Seller shall be permitted to deliver a written notice to Customer to withdraw or revoke a quotation at any time prior to Seller’s receipt of Customer’s acceptance of such quotation. Seller’s quotation may not be disclosed by Customer to any third party or used by Customer in any way to request for quotation for similar Products as those quoted by Seller. Any of the following acts by Customer shall constitute its acceptance of a quotation and these Terms in its entirety: (a) upon Seller’s receipt of the quotation signed by Customer or other written indication of acceptance by Customer; (b) issuing a purchase order for Products on the same or substantially the same price as reflected on the face of the quotation; (c) accepting delivery of Products; or (d) by other conduct which fairly recognizes the existence of a contract for the purchase and sale of Products. Seller is entitled to accept or reject (i) any order which it receives from Customer, which is not a response to a quotation; or (ii) any order or written response from Customer to a quotation, which deviates from the terms contained in any quotation, and these Terms. Seller is only deemed to have accepted and be bound by an order or response to a quotation if it issues a written confirmation to Customer (“Order Confirmation”) within five (5) business days of such order or response. Prior to the Order Confirmation, Seller may at any time, correct any typographical, clerical or other error or omission in the quotation issued without incurring any liability.
- PRICING. Unless otherwise stated, price(s) quoted are in United States Dollars and exclude any duties, and all taxes including but not limited to federal, state, provincial and local taxes, excise, value added, goods and services taxes and/or similar charges imposed by any public authority, all of which shall, where Seller is required by law to pay or collect them, be added to the invoice as separate charges by Seller and paid by Customer unless a valid tax exemption certificate is provided by Customer to Seller prior to the delivery of Products. To the extent Customer is required to withhold or deduct any taxes from payments due to Seller, Customer shall use reasonable commercial efforts to reduce such tax to the maximum extent possible giving effect to the applicable tax treaty and shall furnish Seller with such evidence as may be required by Seller’s tax authorities to establish that such tax has been paid so that Seller may claim any applicable tax credit. Seller may adjust prices to take into account any increase in cost of raw materials, metals, fuels, labour, storage, transportation or other production related costs, including manufacturing, treating, coating and plating costs and foreign exchange fluctuations. Cost of non-standard packaging is not included in the price of Products and any corresponding additional costs shall be charged separately to Customer. Seller will exercise reasonable care in packaging Products for shipment and no responsibility is assumed by Seller for delay or damage after delivery. The quoted price(s) assume that (a) each order will meet the agreed minimum order quantity requirements and at least ninety percent (90%) of Customer’s forecasted annual volume, (b) each order will not exceed the agreed maximum weekly capacity, (c) the delivery dates will take into account agreed lead-times, and (d) work will be performed during normal work hours (in shifts of 8 hours) between the hours of 6:00am to 6:00pm local time, Monday to Friday, holidays excepted. Any costs for overtime hours, excess orders amounts or expedited delivery will be separately charged and payable as mutually agreed between Customer and Seller.
- DELIVERY, QUANTITY. Unless otherwise agreed in writing between Customer and Seller, delivery of Products shall be Ex Works (Seller’s Factory) Incoterms 2020. Carriage of Products shall be at Customer’s sole risk. Delivery dates are approximate only and are not guaranteed. Seller will use commercially reasonable efforts to meet Customer’s requested delivery dates provided Customer has complied with Seller’s applicable lead time requirements as well as provides all necessary documentation or information (including but not limited to any specifications, designs, drawings or blue-prints which has been agreed to in writing with Seller, to enable Seller to manufacture) sufficiently prior to the agreed delivery date. Customer agrees that failure to deliver by an estimated delivery date shall not give Customer any right to claim compensation, nor impose any responsibility or liability on Seller. If for any reason Customer postpones or fails to accept delivery of any of the Products when due, or if Seller is unable to deliver the Products at the delivery point because Customer has made changes thereto or has not provided appropriate or timely instructions, documents, licenses or authorizations:
- The Products shall be deemed to have been delivered on the original delivery date (“Deemed Delivery”);
- Risk of loss, damage and/or degradation to the Products shall pass to Customer upon Deemed Delivery;
- Seller may, at its discretion and without prejudice to any other rights which Seller may have against Customer, without notice and without any responsibility whatsoever attaching to Seller, and at the sole risk and expense of Customer, store the Products until Customer picks them up, and Customer shall be liable for all related costs and expenses (including, without limitation, charges relating to sorting, preservation, delivery, storage, insurance and ancillary administrative charges) (the “Storage Charges”);
- Seller shall be entitled to invoice Customer for the purchase price of the Products as well as all accrued Storage Charges;
- Seller shall be entitled to refuse actual delivery of the Products to Customer until the purchase price and the Storage Charges have been paid in full without any deductions whatsoever.
- Without prejudice to any rights or remedies Seller may have under these Terms or at law, If Customer fails to take delivery of the Products within two consecutive calendar months after the date of Deemed Delivery, Seller shall be entitled to:
- On giving 7 days’ prior notice in writing to Customer, terminate the contract in accordance with these Terms without incurring any liability towards Customer; and
- On giving 14 days’ prior notice in writing to Customer, to sell or dispose of the Goods or documents whether by public auction, private treaty or otherwise, and the proceeds of sale shall be applied in satisfaction of firstly, the Storage Costs and the costs and expenses of the sale or disposal and secondly, all and any sums due to Seller without any liability whatsoever on the part of Seller to Customer. In the event that the proceeds of sale are insufficient to satisfy all sums due to Seller, Customer shall be liable to Seller for all such sums which remain outstanding.
Unless otherwise agreed in writing between Customer and Seller, Seller shall be permitted to deliver a quantity of Products that is a maximum amount of ten percent (10%) more or less than the quantity ordered and such delivered quantity shall be deemed to constitute full delivery. Customer shall pay for the actual quantity of Products delivered (i.e. actual quantity of Products delivered multiplied by the price per unit of such Products). Where Seller’s access to resources (including raw materials), supply of the Products or means of production is insufficient to meet the estimated delivery schedule or in the event of a Force Majeure, Seller, in its sole discretion, may allocate its resources or supply to its customers without assuming any liability whatsoever to such customers.
- TITLE AND RISK OF LOSS. Subject to these Terms, title and risk of loss passes to Customer upon delivery of the Products at the delivery point. As a collateral security for the payment of the purchase price of the Products, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Products, wherever located and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
- FORECASTS AND SCHEDULING. Customer shall provide Seller with a rolling six (6) month forecast (“Forecast”) of Customer’s monthly volume requirements for Products on the first (1st) day of each month preceding the commencement of such rolling forecast. The first four (4) months of each rolling forecast shall constitute a binding volume commitment on Customer’s part, pursuant to which Customer will issue one or more purchase orders for the relevant quantities of Products specified for such four (4) months of the forecast (“Committed Forecast”). Customer shall not (a) revise any remaining portion of the Committed Forecast in a subsequent Forecast, or (b) submit purchase orders in quantities smaller than the Committed Forecast. If Customer does not comply with this paragraph, Seller shall be entitled to invoice Customer for any shortfall of the Committed Forecast which Customer did not order.
If there is an increase in demand for Products beyond the forecasted amounts, Customer shall give Seller commercially reasonable advance notice, which shall take into account all agreed lead-times to procure raw materials, manufacture and deliver Products. Unless confirmed in writing by Seller, Seller shall have no obligation to meet such excess demand. For the avoidance of doubt, Seller will supply in accordance with customer orders and prevailing lead times, not the rolling forecast.
- TOOLING. Where Seller is required to build and use tooling for the manufacture of Products for Customer, the following shall apply unless otherwise agreed in writing between Customer and Seller : (a) The tooling shall only be used at Seller’s factory and may not be removed without Seller’s prior written consent; (b) Seller shall only be required to build and provide the agreed number of units of tooling, sufficient to produce the agreed number of shots of Products; (c) Seller shall not be required to procure any insurance coverage for the tooling or any equipment loaned by Customer for the manufacture of Products; (d) Seller shall be held harmless for any damage to such tooling or equipment which occurs through no fault of Seller; (e) all title, rights and interests to all ideas, designs, concepts, methods, processes, manufacturing techniques, trade secrets, proprietary information and other intellectual property which have been developed, created, and utilized by Seller to build the tooling (including but not limited to any tooling for solder bearing leads, press fit pins and semi-conductor packaging products and materials) and/or to manufacture the Products shall belong to Seller exclusively. Where Seller reasonably determines that it would be too costly or risky to repair and/or continue using obsolete tooling, Seller shall promptly notify Customer in writing of the need to phase out such obsolete tooling. Customer shall within sixty (60) days of receiving such notice, use commercially reasonable efforts to come to an agreement with Seller in relation to the (i) phasing out of the obsolete tooling, and (ii) development and building of replacement tooling to replace the obsolete tooling. If Customer and Seller are unable to come to an agreement in accordance with this Clause 7, Seller shall be entitled to dispose of the obsolete tooling at the sole expense of Customer without any liability or further obligation to Customer and terminate the contract in accordance with these Terms. The term “obsolete tooling” shall mean tooling which (y) has been fully expended to produce the agreed number of shots of Products, or (z) Customer and Seller have agreed in writing to be no longer suitable for use. The Customer shall be responsible for costs resulting from (I) requested alterations to tooling, (II) repairs or replacement of tooling caused by normal wear and tear, and (III) requests for shorter lead times, and/or increased rate of delivery. If Customer requires excess capacity beyond the agreed number of shots of Products, then additional tooling, lead-time and production part approval process costs may be required or incurred, the terms of which shall be agreed between Customer and Seller.
- PAYMENT TERMS. Unless otherwise agreed by Seller and specified in Seller’s invoice, payment terms are net thirty (30) days from invoice date and shall be made by Customer in full, without deduction or deferment, on account of any claim, counterclaim or set-off. Any dispute as to the amount or accuracy of any invoice issued by Seller shall be raised by Customer within fourteen (14) days from the invoice date, failing which, Customer is deemed to have conclusively accepted that the invoice is complete and accurate. All deliveries and performance of work agreed to by Seller shall be subject to Seller’s prior credit approval of Customer which may be granted, denied or modified in Seller’s sole discretion. Any credit terms extended by Seller may be changed or withdrawn at any time without prior notice or reason. If, in Seller’s sole judgment, Customer’s financial condition at any time does not justify production, performance of work, or delivery, or if Customer should be in default of its obligations relating to payment of any fees or charges, or any other obligation, Seller may without prior notice (i) require full or partial payment in advance or other payment terms as a condition for delivery; (ii) cancel any discount or credit which may have been granted to Customer; (iii) suspend, delay or cancel any delivery or any other performance by Seller; and/or (iv) charge interest equal to the maximum amount allowed by applicable laws until Seller has received payment in full. Seller will not be liable for, and Customer will hold Seller harmless from, any costs or losses resulting from (a) suspension, delay or cancellation on account of Customer’s failure to make payment and/or (b) in connection with collection of any late payments such as legal fees and exchange losses. Payment by Customer of non-recurring charges (as may be made to Seller for special design, engineering work or production materials) shall not convey title to any design, engineering work or production materials, and title shall remain in Seller, unless otherwise agreed in writing between Customer and Seller.
- EXCUSABLE EVENTS. Seller shall not be liable for any failure or delay in performing any of its obligations if such failure or delay is caused by a Force Majeure event. A “Force Majeure” event means an event or circumstance that is beyond the control of Seller including without limitation: (a) unusually severe weather or other acts of God; (b) fire, explosion or earthquake; (c) war, invasion, terrorism, sabotage or piracy, riot or other civil unrest; (d) governmental laws, orders, restrictions, embargoes or blockages; (e) national or regional emergency; (f) nuclear, chemical or biological contamination; (g) diseases and/or medical outbreak, epidemics, pandemics, plague; (h) injunctions, strikes, lockouts, or other industrial disturbances; (i) inability to obtain or use necessary transportation, power or infrastructure; (j) shortage of equipment, inability to obtain or use necessary products or materials, (k) cyberwarfare, ransomware or other cyberattacks, or (l) other causes whether similar or dissimilar to the foregoing beyond the control of Seller. If Seller’s inability to perform continues, or is reasonably expected to continue, for a period of three (3) consecutive months, Seller is entitled to cancel all or any part of the impacted orders previously confirmed, without any liability to Customer.
- WARRANTY. Subject to the terms hereof, Seller warrants to Customer that, at the time of delivery, the Products will conform to the agreed specifications and will be free of defects in workmanship for a period of one (1) year from the delivery date. Customer shall inspect or test the Products for any breach of the foregoing warranties within five (5) business days after delivery. If Customer does not conduct such inspection or testing within the aforesaid timeframe or does not initiate an RMA (defined below) within the timeframe stated below, the Products shall be deemed to conform with the warranties herein. If a Product does not meet the foregoing warranties, Customer shall promptly notify Seller in writing to initiate a Return Materials Authorization (“RMA”) within five (5) business days of discovery. As part of the RMA process, Customer shall notify Seller in writing the reason, underlying data and other information that supports the return as well as the legal basis, amount of the claim and quantity and type of Product it would like to return. If there is any missing information relevant to the return, Customer shall support Seller in gathering such missing information. At Seller’s request, Customer will return the Products (or a sample amount as requested by Seller) freight prepaid to a location designated by Seller. Seller will assess the returned Products to verify warranty coverage. To be eligible to make any claim under or in connection with these Terms, Seller shall be permitted to (i) inspect the facilities and processes of Customer, its affiliates and/or its customers during a mutually agreed day and time, and (ii) participate in any root cause analysis conducted in connection with such claim. If Seller verifies that any returned Products fail to conform to the warranties herein, Seller’s sole liability shall be at Seller’s option, to repair or replace such Product, or issue a credit or rebate of the purchase price. Seller shall not be liable for any claim under or in connection with these Terms unless it is allowed to complete the investigations set forth in this Clause and agrees in writing to the quantum and extent of damages apportioned to it after completing such investigations. Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period. The warranties shall not apply if (a) Products have been damaged by neglect, improper installation, improper maintenance, misuse, handling or operation of the Products by Customer or any third party or for other reasons not attributable to Seller; (b) Products have been submitted to abnormal conditions (including, but not limited to, mechanical, electrical or thermal) during transportation, storage, installation or use; (c) Products are used in a non-standard environment requiring a robustness not documented in the agreed specifications; (d) Products are sample, prototype, pre-production and/or non-qualified Products; (e) defect results from materials, equipment or toolings provided by Customer and/or its affiliates, or customer or supplier of Customer and/or its affiliates; (f) defect results from design, specifications or instructions of Customer and/or its affiliates, or customer or supplier of Customer and/or its affiliates, for such Product; (f) Customer fails to notify Seller of a particular defect within five (5) business days after discovery; or (g) there are outstanding payments due and unpaid by Customer. Furthermore, the warranties herein shall not apply if Customer or any third party attempts to repair or replace the nonconforming Product without Seller’s written authorization. THE WARRANTIES HEREIN ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR TERMS EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO (A) EPIDEMIC FAILURE; (B) MERCHANTABLE AND/OR SATISFACTORY QUALITY, (C) FITNESS FOR A PARTICULAR PURPOSE OR USAGE OR FUNCTIONALITY OR (D) NON-INFRINGEMENT.
- INTELLECTUAL PROPERTY. Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the contract. Customer grants Seller a global, fully paid, royalty-free, non-exclusive licence to Customer’s Confidential Information or Intellectual Property, to enable Seller to make, repair, modify or supply Products to Customer pursuant to the contract. All new intellectual property conceived or created by Seller in the performance of the contract, whether alone or with any contribution from Customer, shall be owned exclusively by Seller. Customer agrees to deliver assignment documentation as necessary to achieve that result. Customer shall defend and hold Seller harmless from any action, civil or criminal, brought against Seller by any third party, for any claim arising out of or in connection with (a) the manufacture, sale and/or supply by Seller of any Products which have been manufactured to specifications, drawings, designs or instructions provided by Customer, and/or (b) Seller reproducing any specifications, drawings, designs, logos, marks or emblems provided by or in accordance with the instructions of Customer, to facilitate the manufacture, sale and/or supply of the Products by Seller to Customer. Customer agrees to further hold Seller harmless from all expenses, judgments, damages or losses resulting from such claims. The supply of Products by Seller does not grant the Buyer any right or licence under patent, copyright or other intellectual property right, now or hereafter owned or controlled by Seller, to make or have made the Products.
- LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR LOST SAVINGS, PENALTIES, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SELLER HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF THESE DAMAGES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF ALL TRANSACTIONS BETWEEN CUSTOMER AND SELLER, WHETHER BASED UPON CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE EXCEED THE GREATER OF (A) THE TOTAL AMOUNT THAT CUSTOMER HAS PAID SELLER FOR A PRODUCT, FROM WHICH THE CLAIM ARISES, IN THE CALENDAR YEAR IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) US DOLLARS FIVE HUNDRED THOUSAND (US$500,000). FOR THE AVOIDANCE OF DOUBT, THE AFORESAID MAXIMUM AGGREGATE LIABILITY SHALL NOT INCREASE OR BE ENLARGED EVEN IF SELLER ENTER INTO OTHER AGREEMENTS OR CONTRACTS WITH CUSTOMER.
CUSTOMER UNDERSTANDS AND AGREES SELLER’S PRICE HAS BEEN NEGOTIATED IN CONSIDERATION OF THE ALLOCATION OF RISKS AND ARE ESSENTIAL ELEMENTS OF EACH CONTRACT AND SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY.
- CUSTOMER DIRECTED SUPPLIES. Customer may direct Seller to obtain raw materials, components, equipment, or services from Customer named, appointed and/or directed third parties (“Customer Directed Supplies”) for use in the provision of the Products. Seller shall not be responsible to Customer for any warranty or other claims arising from such Customer Directed Supplies or from the failure of such third party to timely provide such supplies.
- NOTICE OF CLAIM, TIME BAR. Seller shall be discharged of any and all liability whatsoever unless notice of any alleged breach, such notice being a condition precedent to any liability on the part of Seller, is received in writing by Seller within thirty (30) days of Customer being made aware of such breach (except for breach of warranty which notice is to be provided within five (5) business days after discovery of the defect) and Seller is allowed reasonable opportunity to verify and correct such breach, and any lawsuit relative to any claim must be filed within two (2) years of the date of customer’s written notice to Seller of the claim. Customer agrees that any notice provided or claim filed outside the prescribed timelines are deemed waived.
- THIRD PARTY RIGHTS EXCLUDED. These Terms are solely for the exclusive benefit of Customer and Seller. All third party rights of enforcement are hereby excluded to the fullest extent permitted by law.
- CONFIDENTIALITY, PRIVACY. Customer acknowledges that all technical, operations, commercial and financial information disclosed in any form whatsoever to Customer by Seller is the confidential information of Seller. Sharing this confidential information with Customer does not constitute a transfer of ownership or authorisation to disclose by Customer or confer any Intellectual Property rights of any nature therein. Such confidential 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 Seller. If such confidential information is no longer required to be used by Customer, other than in connection with the transactions contemplated under the respective agreement(s) entered into between Customer and Seller, then it must be returned to the sender promptly on written demand, and not used for any other purpose. Each of Customer and Seller may collect, store and process personal data from each other in relation to a transaction under these Terms and may transfer such personal data outside the jurisdictions where Customer and/or Seller is located. Customer agrees that such personal data will be used and retained for the purposes related to the performance of these Terms concerning the Products sold and in accordance with applicable data privacy laws.
- COMPLIANCE WITH LAWS. Each party shall comply with all laws applicable to the performance of its obligations under these Terms. If the delivery of Products or technology under these Terms is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Seller may suspend its obligations and Customer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Seller may even terminate any contract related to such Products, without incurring any liability towards Customer.
- TERMINATION. Without prejudice to any rights or remedies Seller may have under these Terms or at law, Seller may, by written notice to Customer, terminate with immediate effect any contract in whole or in part, without any liability, if: (a) any proceedings in insolvency, bankruptcy (including reorganization), liquidation or winding up are instituted against Customer, or a trustee or receiver is appointed over Customer, or any assignment is made for the benefit of creditors of Customer; or (b) Customer violates or breaches any of the provisions of these Terms. Upon cancellation, expiration or termination of any contract, (i) all payments to be made by Customer under the contract shall become immediately due and payable, and (ii) the terms and conditions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the contract including, but not limited to the following provisions, Warranty, Intellectual Property, Limitation of Liability, Notice of Claim, Time Bar, Confidentiality, Privacy, Termination, Notices, Governing Law and Jurisdiction shall survive.
- CHANGES. Each party may at any time propose changes in the schedule or scope of Products or Services. Seller is not obligated to proceed with any change until such change is agreed by the parties in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price, delivery time and other provisions, as agreed.
- END OF LIFE. Customer shall give at least six (6) months advance written notice to Seller before its program is terminated, Products are phased out or at the end of its program life (“EOL“). Seller may also deem these events to constitute EOL: (a) receipt of written notice to transfer tooling or automation to a different manufacturer; or (b) if annual purchase volume is less than 50% of the mutually agreed annual volume which Customer is required to purchase in any given production year. Upon EOL, the parties will negotiate in good faith to reach terms for supply of service parts and/or final inventory build, if applicable. If an agreement is not reached within sixty (60) days, then either party may terminate the supply agreement by giving the other party three (3) months advance written notice. In the event of transfer of tooling or automation, Seller’s supply obligation terminates immediately upon receipt of the written notice. Upon termination, Seller will invoice Customer for unsold raw materials, semi-finished and finished inventories (purchased or on order), unpaid tools/ automation, unamortized rebates, and other mutually agreed costs.
- GENERAL. Customer and Seller are independent contractors, and nothing contained herein makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or create any obligation on behalf of the other party. If any provision(s) of these Terms is held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, the holding or action shall not negate the validity or enforceability of any other provisions of these Terms. The failure or delay by Seller to exercise any right or remedy arising from these Terms, shall not operate as a waiver of the right or remedy; and no single or partial exercise of any right or remedy will preclude any other or future exercise of the right or remedy or the exercise of any other right or remedy arising from these Terms or by law. Seller may assign or novate, in whole or in part, any rights or obligations under these Terms (i) to its affiliates, or (ii) in connection with a corporate reorganization or restructuring, amalgamation, or sale of all or a substantial portion of the assets of a division, business unit or entity, in one or a series of related transactions without Customer’s consent. In addition, Seller may assign any of its accounts receivables under the Order Confirmation to any party without Customer’s consent. Customer agrees to execute any documents that may be necessary to complete Seller’s assignment or novation. Seller may subcontract portions of work, or purchase parts, equipment or materials from suppliers or subcontractors, so long as Seller remains responsible for it. Customer shall not assign or transfer any rights or obligations under these Terms without the prior written consent of Seller and any such assignment or transfer made without prior written consent shall be void.
- NOTICES. All notices to be given under these Terms shall be in writing and shall be deemed delivered upon successful electronic mail transmission, hand delivery, confirmed delivery by a delivery services such as UPS, FedEx, or DHL, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their last known address.
- MODIFICATIONS TO THESE TERMS. Seller may unilaterally modify these Terms at any time by publishing the amendments on Seller’s website at https://interplex.com/business-terms/. Modifications shall have effect (i) on all quotations, confirmations and contracts referring to the modified Terms from the date of the quotation, confirmation or contract, and (ii) on any existing agreement thirty (30) days from notification of the modifications by Seller to Customer, unless Customer has notified Seller in writing within the thirty (30) days period that it objects thereto.
- GOVERNING LAW, JURISDICTION. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale of any Products.
The governing law of these Terms shall be English law. Any and all disputes arising out of or in connection with these Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force at the commencement of the arbitration which rules are deemed to be incorporated by reference in this Clause, PROVIDED always that:
- Seller shall have the sole right at its option to commence legal proceedings before the Courts of Singapore to pursue the merits of any claim against Customer and/or as an interim measure to secure payment in respect of any claim or dispute against Customer.
- Where Seller and/or Customer is a company incorporated in the People’s Republic of China, Seller shall have the sole right at its option to refer any and all disputes arising out of or in connection with these Terms to arbitration administered by the China International Economic and Trade Arbitration Commission in accordance with the CIETAC’s arbitration rules (“CIETAC Arbitration”) for the time being in force, which shall be seated in Shanghai, People’s Republic of China, and conducted in English language. Notwithstanding anything else in these Terms to the contrary, if Seller exercises its right to opt for CIETAC Arbitration, the governing law of these Terms shall be the laws of the People’s Republic of China.