Molex standard Terms and Conditions for Europe

Transcription

1 Molex standard Terms and Conditions for Europe 1. DEFINITIONS AND INTERPRETATION 1.1 "Conditions" means these standard terms and conditions of sale. 1.2 "Contract" means any agreement between Seller and Buyer for the sale and purchase of Products. 1.3 "Products" means all goods, tooling and materials, delivered or to be delivered to Buyer by Seller. 1.4 "Specifications" means Seller's drawings, photographs, illustrations, performance data, dimensions, weights and other technical information, specifications or any other particulars relating to the Products provided by Seller to Buyer, with the exception of any information provided in publicly available documents such as catalogues, price lists, advertisements etcetera. 2. FORMATION OF CONTRACT 2.1 These Conditions will apply to all offers, orders and Contracts concluded or to be concluded by Seller and Buyer and to all other legal relationships between them. By placing an order for Products, Buyer shall be deemed to have accepted these Conditions. Terms or conditions put forward by Buyer shall not be binding and shall not have any effect against Seller in any manner whatsoever. 2.2 All offers of Seller, however they are made, will be free of obligation unless provisions to the contrary have been laid down in writing. Seller is allowed to accept and reject orders of Buyer at its sole discretion. 2.3 A Contract will be deemed to have been concluded after Seller has confirmed an order placed by Buyer, or if Seller has commenced the execution of that order, whichever moment comes earlier. 2.4 In the event that a Contract is concluded by , or in the event that a Contract is concluded through another means of electronic communication (such as the EDI-system), such message or statement made through another means of electronic communication is deemed to be equal to a written statement and the principle will apply, without prejudice to the provisions laid down in clause 2.3, that a Contract may be concluded without Seller having to fulfill any conditions provided by law pertaining to electronic communication. 3. SPECIFICATIONS 3.1 Any and all specifications of Products in catalogues, price lists, advertisements, etc. must be deemed to be representations by approximation only, unless Seller has explicitly indicated the contrary in writing with regard to a specific delivery. 3.2 Seller is at all times entitled to effect adjustments in the ordered Products, in order to improve them or comply with government regulations. 1

2 4. PRICES 4.1 Subject to clause 4.3, the price of the Products shall be the price quoted by Seller in its quotation to Buyer or, where no price has been quoted, the price listed in Seller's published price list current at the date of Buyer's order. 4.2 Unless indicated otherwise by Seller on its quotation or order confirmation, all prices will be Ex Works (Incoterms 2000 or, if any, the most recent version of the Incoterms) and exclusive of VAT and all other costs that Seller is not responsible for under the applicable Incoterm. All payments must be made in the currency quoted by Seller. 4.3 Seller reserves the right, by giving notice to Buyer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to Seller which is due to any factor which is not attributable to, or which is beyond the control of Seller, including (without limitation), increases in the cost of labour, materials, transport, packing or insurance charges, any change of delivery dates, quantities of the Products or Specifications which are requested by Buyer, or failure of Buyer to give Seller adequate information or instructions. 5. PAYMENT 5.1 Unless otherwise agreed in writing, Buyer will pay the entire purchase price, or the remainder thereof in the event of advance payment, within thirty (30) days after the date of invoice, by transfer to or deposit into an account indicated by Seller, without any deduction, discount or set-off. Submission of a complaint will not suspend Buyer s obligation to pay. 5.2 If Buyer fails to pay within thirty (30) days after the invoice date, it will be in default and all claims of Seller will become fully due and payable immediately. In that event, and without prejudice to any other rights of Seller under any Contract or the law, Seller shall be entitled to (i) suspend (further) performance of any and all Contracts with Buyer and/or (ii) interest on the overdue amount at the rate of five percent (5%) per annum above the Eonia rate as published by Euribor from time to time, until the date of receipt of all outstanding payments. The amount subject to this contractual interest will, as the case may be, be calculated after the end of each year, and increased by the interest owed over that year. 5.3 If in the opinion of Seller the creditworthiness of Buyer shall have deteriorated prior to delivery of any Products, Seller may require full or partial payment of the price prior to delivery or the provision of security for payment by Buyer in a form acceptable to Seller. 6. DELIVERY AND CANCELLATION 6.1 Unless indicated otherwise by Seller on its quotation or order confirmation, delivery will be effected Ex works (Eindhoven facility), Incoterms 2000 or, if any, the most recent version of the Incoterms. Buyer will be obliged to take delivery of the Products upon Seller s request. Seller shall be entitled to deliver in installments. 6.2 Any delivery times stated by Seller (including but not limited to any indicated Molex planned delivery date ( MPD ) and lead times) are estimates only and may not be considered to be firm deadlines, unless provisions to the contrary have been explicitly agreed upon in writing between the parties. In the event that a delivery time is not met, Seller must be declared to be in default in writing, in which connection Seller will be granted a reasonable term of at least fourteen (14) working days as of the date of the receipt of notification to fulfill its obligations. In the event that such extended term is exceeded, Buyer will be entitled to dissolve the Contract or part of the Contract only with respect to the Products not delivered. Seller will not be liable to pay damages incurred by Buyer in connection with the delayed delivery, unless such damages are the consequence of gross negligence or willful misconduct of Seller's management board or executive management. 2

3 6.3 Without prejudice to any of the foregoing, in the event that Buyer seeks to cancel all or any part of its order of Products under any Contract within Seller's estimated delivery time for the Products in question Seller shall in its sole discretion choose to reject or accept the cancellation. 6.4 If Seller accepts the cancellation request, Buyer shall pay a cancellation fee calculated on the following basis Period (in calendar days) before (but not including the date of) Seller's scheduled delivery date Cancellation fee (shown as a % of the total price to be paid for all Products on the order) Current or forecast demand for the Products exists Current or forecast demand for the Products does not exist More than 35 calendar days 0% 0% (except for the costs of any special materials used in the Products) 14 to 35 calendar days 0% 50% Less than 14 calendar days 100% 100% 6.5 Buyer may reschedule delivery of a Product on no more than three (3) separate occasions provided always that no rescheduled delivery date shall require delivery on a date later than six (6) months after Seller s initial estimated delivery date. A request to reschedule delivery of a Product to an unspecified future date or a date beyond six (6) months following the initial estimated delivery date will be considered as a request to cancel the order and the provisions of clauses 6.3 and 6.4 shall apply. 7. RISK AND TITLE 7.1 The risk of loss and damage to the Products shall pass to Buyer on delivery in accordance with clause 6.1 of these Conditions. 7.2 Notwithstanding delivery and the passing of risk in the Products, Seller shall retain title to all the Products delivered and to be delivered until such time as Buyer shall have paid to Seller the purchase price for the Products. 7.3 In the event that Buyer fails in the performance of any obligation vis-à-vis Seller, or in the event that Seller has in its sole opinion good reason to fear that Buyer will fail in the performance of its obligations, Seller will be entitled to recover the goods delivered under retention of title or to have such recovered, even when the goods have to be detached. Buyer will cooperate accordingly. Buyer will bear the costs of recovery, without prejudice to Seller s right to further damages. 7.4 From the time at which risk passes, until such time as title to the Products passes to Buyer as provided in clause 7.2, Buyer shall at its own expense store the Products carefully, sufficiently insure them, keep them clearly identifiable as Seller's property and maintain records of such Products identifying them as Seller's property and identifying the companies to whom it sells or disposes of such Products and of the payments made by such companies for such Products. Buyer agrees to allow Seller to inspect such records and such Products on request. Buyer will pledge to Seller any claims it has pursuant to its insurance policies upon Seller s request, as additional security with respect to Seller s claims against Buyer. 7.5 To the extent permitted by applicable law, Seller shall be entitled to trace the proceeds of sale received in respect of Products owned by Seller. Such proceeds shall be paid into a separate 3

4 bank account and shall be held by Buyer on trust for Seller. 8. INSPECTION AND COMPLAINTS 8.1 The Products delivered must be checked by or for Buyer upon delivery with respect to numbers and visible defects. Buyer will be obliged to perform the inspection with due care or to have the inspection performed with due care, be it by the hauler engaged or another party. Buyer will bear the risk for inspecting the Products by means of random checks and may not rely on the fact that it did not observe a defect that was visible and could have been discovered upon delivery because it or a third party engaged by it did not inspect the entire shipment. 8.2 Save in respect of Products which Seller has agreed in its acknowledgement of order to deliver 'ship to stock', all claims for incorrect delivery, damage, shortage or breakage should be notified to Seller within five (5) working days of delivery. Claims for Products expressly indicated by Seller to be delivered ship to stock or any other defects that could not have been discovered upon delivery must be made within five (5) working days of the discovery by Buyer of such defect. A claim for non-delivery of any Product must be made within five (5) working days of receipt by Buyer of Seller's invoice in respect of the same. 8.3 Notwithstanding any other provision of these Conditions, any and all claims for payment of an amount of money and/or repair of the relevant Product and/or replacement of the Product, on whatever basis, as well as any right to dissolve the Contract, will lapse at the earliest of the following times: a) upon late reporting pursuant to clause 8.2 or b) after expiry of the oneyear period specified by clause DEFECTIVE PRODUCTS 9.1 The Products will correspond in all material respects with the Specifications and will be free from defects in material and workmanship for a period of one (1) year from the date of delivery of the Products to Buyer. Seller has no obligation and Buyer shall have no rights in relation to any characteristics and/or performance of the Products other than the characteristics and the performance as described in this clause Buyer acknowledges that Products, which are solderable products have tin and tin/alloy plating. Oxidation is the nature of tin which influences the solderability. The industry standard for shelf-life of solderable products with tin and tin/alloy plating is one (1) year at the end of which a solderability test must be conducted. If at this time they may continue to be used for their intended use, further solderability tests must be conducted every six (6) months thereafter, to verify if they are still usable for their intended use. 9.3 The provisions of clause 9.1 do not apply to Products, (i) which have been subject to neglect, misuse, accident or improper installation, or failure to follow Seller's instructions, (ii) which have been repaired or altered otherwise than by agents or employees of Seller unless previously authorized in writing by Seller, (iii) in respect of which the defect arises from or is attributable to any design specification or instruction supplied by Buyer. 9.4 If a valid claim in respect of Products which is based on clause 9.1 is notified to Seller in accordance with clause 8 above, Seller shall at its sole discretion replace the Products (or any such part of the Products in question) free of charge or (at Seller's sole discretion) refund to Buyer the price of the affected Products (or a proportionate part of the price). Such replacement or refund shall be Seller's sole liability and Buyer's sole remedy for breach of clause 9.1 and any non-conformity. 9.5 The provisions of this clause 9 apply without prejudice to the provisions of clause 10 of these Conditions. 4

5 10. LIABILITY AND INDEMNIFICATION 10.1 Any liability on the part of Seller on the basis of an attributable failure ( toerekenbare tekortkoming ) with respect to any offer, order and/or a Contract shall be restricted to the provisions laid down in clause Seller will assume no liability with respect to damage as a consequence of or related to any errors or omissions in advice rendered by it, nor will it assume any liability with respect to damage as a consequence of or related to errors or omissions in the processing instructions recommended by it Subject to Clause 10.5, in the event that Seller is liable for any damages suffered by Buyer, the maximum aggregate financial exposure to Buyer under or in connection with any Contract, whether arising in contract, wrongful act or otherwise shall not exceed the total sums paid by Buyer for the failed Products under such Contract ("Sum Paid"). However, if the aggregate sums paid for Products purchased by Buyer in the twelve (12) months prior to the date of Seller's acceptance of the relevant Product order is five (5) million Euro or more, Seller's maximum aggregate financial exposure to Buyer shall be the total of (i) the Sum Paid for the failed Products increased with (ii) an amount equal to 3 % of the Sum Paid for the failed Products Buyer agrees to indemnify, defend and hold harmless each of Seller and its officers, directors, employees, successors and assigns from and against any and all damages arising out of or in connection with any use of the Products in other products (including but not limited to any damage resulting from third party claims), unless Buyer demonstrates that such damages are the result of a Product not being in conformity with clause 9.1 of these Conditions Notwithstanding any other provision in these Conditions, in no event will either party be liable to each other or to any third party for the cost of procuring substitute goods or services, lost profits, loss of use, loss of data or any incidental, consequential, indirect, or special damages, whether under contract, wrongful act, warranty or otherwise, arising in any way out of this or any other related agreement, whether or not such party had advance notice of the possibility of such damages Seller shall not invoke the limitations of liability in this clause 10 when its liability arises or ensues from the gross negligence or willful misconduct of Seller's management board or executive management. 11. FORCE MAJEURE 11.1 If Seller fails in the performance of its obligations under any Contract due to an event of force majeure, it will not be liable. To the extent that the circumstance making performance impossible is not of a permanent nature, Seller s obligations will be suspended. In the event that the period during which performance is not possible due to force majeure exceeds 2 months or is expected to exceed 2 months, both parties will be entitled to cancel the Contract, without any obligation to pay the damages that may arise as a result In the event that Seller has already partially fulfilled its obligations upon the occurrence of the situation of force majeure, or is only able to fulfill its obligations in part, it will be entitled to separately invoice the part already supplied or the part that can still be supplied and Buyer will be obliged to pay that invoice as if it pertained to a separate Contract An event of force majeure within the meaning of this clause 11 will be deemed to have occurred if Seller fails in the performance of its obligations by reason of circumstances or events beyond the reasonable control of Seller, including but not limited to, acts of God, 5

6 natural disasters, fire, flood, storm, explosion or earthquake, accidents, prohibition or limitation of exports or imports, any act of government, war, insurrection, terrorism, riots, strikes, lock-outs, trade dispute or labour disturbances, shortages of materials, default of suppliers, breakdowns of machines or tools or other breakdowns within Seller s company. A situation of force majeure must also be deemed to have occurred on the part of Seller if one on more of the aforementioned circumstances occurs within the companies of Seller s suppliers and Seller cannot or could not (timely) perform as a consequence. 12. INTELLECTUAL PROPERTY 12.1 All current and future intellectual property rights, including but not limited to trademark rights, copy rights, patent rights, design rights and data base rights, with respect to any and all Specifications and in or to any and all Products shall vest in the Seller. Buyer may not reproduce, copy or in any manner disclose the Specifications of the Products to third parties without Seller's consent in writing. In the event that Seller gives written consent to Buyer to disclose the Specifications to third parties, Buyer shall ensure that such third parties shall have the same obligations as set forth in this Article Notwithstanding delivery of and the passing of title in any Products, nothing in any Contract shall have the effect of granting, licensing, or transferring to, or vesting in, Buyer any intellectual property rights, including but not limited to trademark rights, copy rights, patent rights, design rights and data base rights, in or to any Products If any claim is made against Buyer that the Products infringe the intellectual property rights of any third party, Seller shall (save to the extent such infringement is attributable to a design specification or instruction provided by Buyer in which case the provisions of clause 12.3 shall apply) indemnify Buyer against all losses, damages, costs and expenses awarded to such third party against or incurred by Buyer in connection with the claim, or paid or agreed to be paid by Buyer in settlement of the claim, subject to the limitations of clause 10.3 and clause 10.5 and provided that: Seller is given full control of any proceedings or negotiations in connection with any such claim; Buyer shall give Seller all reasonable assistance for the purposes of any such proceedings or negotiations; Buyer shall not pay, accept or settle any such claim, or compromise any such proceedings or negotiations without the prior written consent of Seller; the alleged infringement is not caused by the use of the Products with other products or services, or if the Products are used by Buyer in violation of the conditions of the Contract, or any underlying agreement, or if Buyer or anyone other has modified the Products concerned Buyer shall do nothing which would or might vitiate any insurance cover which Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that Buyer recovers any sums under any such policy or cover (which Buyer shall use its best endeavours to do); Seller shall be entitled to the benefit of, and Buyer shall accordingly account to Seller for, all damages and costs (if any) awarded in favour of Buyer to be paid by any other party in respect of any such claim; and Seller shall be entitled to require Buyer to take such steps as Seller may reasonably require to mitigate or reduce any such loss, damage, cost or expense for which Seller is liable to indemnify Buyer under this clause Buyer warrants that any design specification or instruction provided by it to Seller shall not cause Seller to infringe any rights of any third party in the performance of the Contract, and Buyer undertakes to indemnify and keep indemnified Seller against all claims, actions, losses, damages, liabilities, costs and expenses incurred by or awarded against Seller as a 6

7 result of work required to be done to the Products in accordance with design specification, instruction or other requirements of Buyer which results in any allegation or claim that Seller has infringed any rights of any third party Buyer will not do or authorize any third person to do any act which would or might impair, damage or be inconsistent with the trade mark rights owned or used by Seller in relation to the Products or to the goodwill associated therewith and, in particular, will not do or authorize the alteration, obliteration, covering up or incorporation of other trade marks (in whole or in part) on the Products. The Buyer shall further not use the Seller s trademark rights, trade name, logo or any other identification marks for the purpose of advertising or publicity or otherwise without the Seller s prior written consent. 13. SUSPENSION AND DISSOLUTION Without prejudice to Seller s rights under these terms and conditions or under the law, Seller will at any event be entitled to suspend (further) performance or to dissolve any Contract concluded with Buyer, in whole or in part, if (i) any Products made available by Seller to Buyer become subject to attachment, (ii) Buyer is granted a suspension of payments or is declared bankrupt, (iii) any permits or licenses required for the performance of the Contract are withdrawn, (iv) Buyer fails to fulfill one or more of its obligations ensuing from any Contract with Seller (v) Seller has sound reasons to believe that Buyer is or will be unable to fulfill its obligations under any Contract, or (vi) Buyer ceases its business or if a change occurs in the control of that business. Any right of Buyer to suspend performance is hereby excluded. 14. EXPORT COMPLIANCE 14.1 Buyer hereby agrees to comply fully with all applicable sanctions and export control laws and regulations, including without limitation those of the United States and the European Union. Specifically, Buyer covenants that it shall not -- directly or indirectly -- sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any Products, received from Seller under the Contract to any person, entity, or destination, or for any activity or use prohibited by aforementioned laws and regulations without obtaining prior authorization from the competent government authorities as required by those laws and regulations. To the extent required, Buyer further covenants to screen all customers and business partners against all embargoed countries lists, all relevant lists of persons denied export privileges or otherwise subject to trade, export, or financial sanctions, including without limitation the most current versions of OFAC s list of Specially Designated Nationals and Blocked Persons and BIS s Denied Persons List and Entity List, before providing or agreeing to provide any Products to any person Buyer s breach of these sanctions and export compliance provisions shall entitle Seller to immediately terminate any Contract concluded with Buyer. Buyer agrees to indemnify and hold harmless Seller for Purchaser s noncompliance with these controls in connection with the Products Notwithstanding any other provision of these Conditions, Seller shall not be required to commit or omit any action that is prohibited under or penalized by any applicable sanctions and/or export control laws and regulations. 15. MISCELLANEOUS 15.1 No forbearance, delay or omission by Seller in exercising any rights or remedy provided by law or under these Conditions shall prejudice, affect or restrict the rights or remedies of Seller or operate as a waiver thereof nor shall any waiver by Seller of any breach operate as 7

8 a waiver of any subsequent or continuing breach thereof. The rights and remedies provided in these Conditions are cumulative and not exclusive of any rights or remedies provided by law, unless specifically excluded by these Conditions No amendment to or variation of these Conditions or the Contract or any part thereof shall be binding unless written notice of the amendment or variation, signed by a duly authorized representative of Seller, is given to Buyer. Any amendment or variation will take effect thirty (30) days from the date of the notice, unless indicated otherwise in these Conditions or otherwise agreed in writing If any provision or part of a provision of these Conditions or any Contract shall be, or be found by a court or tribunal of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision or part thereof shall not affect the other provisions or parts of such provisions of these Conditions or any Contract, all of which shall remain in full force and effect Buyer may not assign, transfer, novate or otherwise dispose of all or any of its rights or obligations under the Contract without the prior written consent of Seller Without prejudice to clause 12.1, the parties agree and undertake that they will keep confidential, will not use for its own purposes and will not disclose to any third party, any information of a confidential nature received from the other party, including but not limited to any Specification or information about the prices payable by Buyer under any Contract save to the extent that such information is or becomes public knowledge (other than by breach of this clause) or is required to be disclosed by law or order of a competent authority. 16 APPLICABLE LAW AND DISPUTE RESOLUTION 16.1 All offers, orders and Contracts will be governed by Dutch law. The UN Convention on Contracts for the International Sale of Goods ( CISG ) will not apply In the event that Buyer is domiciled in a Member State of the European Union or in Norway, Switzerland or Iceland at the time that proceedings are commenced, any and all disputes relating to offers, orders and/or Contracts will be exclusively settled by the competent court in Amsterdam, the Netherlands, without prejudice to Seller s right to submit a dispute to the court that would be competent in the absence of this provision. In the event that Buyer is not domiciled in a Member State of the European Union or in Norway, Switzerland or Iceland upon the commencement of proceedings, any and all disputes relating to offers, orders and/or Contracts will be settled in accordance with the rules of the Netherlands Arbitration Institute [Nederlands Arbitrage Instituut, or NAI]. Arbitration will take place in Amsterdam, the Netherlands. The case will be submitted to three arbitrators and the arbitration proceedings will be conducted in Dutch. 8