GENERAL TERMS AND CONDITIONS
These general terms and conditions of sale together with other directly associated written Seller specifications and quotations, will set the foundation of sale and licensing of all goods and services sold. No supplement or modification of these terms and conditions will be binding for Seller, unless agreed in writing by authorized representatives of both parties. Seller objects to other terms and conditions that might be proposed by the customer if not consistent with these terms and conditions or the Sellers’s written specification, quotation or order acknowledgement.
The term “Seller” as used herein shall refer to the EVOSYS North America Corporation. The term “Buyer” as used herein shall refer to the customer designated on a Seller order acknowledgement (“Order Acknowledgement”). The terms “Product” and “Products” refer to the goods sold by Seller described on a Seller Order Acknowledgement. The term “Services” may refer to non-recurring engineering services and/or development of tooling. The term “contract” as used herein shall refer to the terms, conditions and warranties contained in this document.
2. PRODUCTS AND SALE TERMS
Buyer agrees to purchase and Seller agrees to sell Products specified in Seller’s order acknowledgement under the terms of this document. Any terms or conditions asserted by Buyer as applicable to this transaction, in a purchase order, on a web site, or otherwise, are inapplicable and rejected by Seller. If for any reason Buyer should fail to accept these terms in writing, any conduct by Buyer which recognizes the existence of a contract pertaining to the subject matter hereof, including payment and/or acceptance of Products, shall constitute an acceptance by Buyer of this document and all of its terms and conditions.
Although it is Seller’s practice to provide as much advance notice as possible, prices are subject to change without notice and adjustment to Seller’s prices in effect at time of order placement. Unless otherwise specified by Seller, prices are for the specific quantity stated and do not include taxes nor charges for transportation, insurance, special packaging, or marking. Prices for any undelivered goods or services may be increased by Seller in the event of any increase in the cost to Seller of supplies, raw materials, labour or services, or any increase in Seller’s cost resulting from any cause beyond Seller’s control.
(a) Payment will be made according to agreed upon terms: wire transfer.
(b) Buyer agrees to pay the entire net amount of each invoice rendered by Seller pursuant to the terms of each such invoice without offset or deduction.
(a) Standard Payment Terms are net fourteen (14) days from date of invoice, except otherwise agreed in the Order Acknowledgement, with ongoing approved credit as determined by Seller. Seller reserves the right to suspend any further performance under this agreement or otherwise in the event payment is not made when due. No payment by offset is permitted unless approved by Seller.
(b) In the event that the Buyer fails to keep the account current, all amounts owed by the Buyer shall immediately become due and payable. The Buyer shall also become indebted to the Seller for costs of collection, including reasonable attorney fees, which arise if payment terms are not met. Said invoices not paid by maturity date will have a 1‑2% per month late payment charge assessed against any unpaid balance from the due date of the invoice until the date of payment.
(c) If any indebtedness remains unpaid for thirty (30) days after the demand for payment, the Seller may, in addition to any other rights it has under other agreements and/or applicable law, exercise any or all of the rights of a secured party and forward Buyer to collections.
Unless otherwise agreed in writing, Buyer shall be responsible for the payment of any and all Federal, state and local sales, use, and excise taxes and all other taxes and charges assessed in connection with sales made under this contract.
Delivery terms are Ex Works, except otherwise specified in Seller’s Order Acknowledgement, with respect to shipping costs, risk of loss and title transfer, except that title to all intellectual property rights associated with the Products (e.g., software and firmware) remains with Seller (or its suppliers and licensors) and such Products are made available or licensed only for use by the Buyer pursuant to this agreement or other Seller license agreement. In the absence of specific instructions, Seller will select the carrier. Transportation from the ExWorks point designated in Seller’s Order Acknowledgement, handling and insurance are at the cost of Buyer. Goods held for Buyer, or stored for Buyer, shall be at the risk and expense of Buyer. Claims against Seller for shortages must be made within 10 days after arrival of shipment in writing. Unless done so, the goods and services are deemed to have been accepted by Buyer. In order for the notice of rejection to be effective, it must also specify the reason(s) why the goods or services are being rejected.
All delivery dates are approximate. Seller will use commercially reasonable efforts to fill orders according to the delivery dates acknowledged by Seller. Delivery may be made in instalments. Default or delay by Seller in shipping or delivering the whole or any part or instalment of the goods or services under this contract shall not affect any other portion thereof.
9. SELLER’S LIMITED WARRANTY AND LIMITATION OF LIABILITIES
(a) Seller warrants that at the time of shipment the Products sold hereunder will be free from defects in material and workmanship, and will conform to Seller’s applicable specifications, or if appropriate, to other specifications accepted by Seller in writing.
(b) If any defect within this warranty appears within one year from the date of shipment by Seller, Buyer shall notify Seller immediately. Seller agrees, at its election and as Buyer’s sole remedy, to repair, replace with the same or functionally equivalent products, or issue a credit in the amount of the unit contract price for any Products which upon test and examination by Seller, do not comply with the above warranty. Any repair or replacement shall not extend the warranty period. No goods will be accepted for return or replacement without the written authorization of Seller. Upon such authorization, and in accordance with instructions by Seller, the goods will be returned and shipping charges prepaid by Buyer per industry standard unless otherwise authorized.
(c) The warranty does not extend to any goods manufactured by Seller which have been subjected to misuse, neglect, accident, improper testing or installation, unauthorized repair, or alteration, whether by Buyer or others. This warranty shall not be expanded, and no obligation or liability will arise, due to technical advice or assistance, qualification or testing data or service Seller may provide in connection with Buyer’s purchase.
(d) WARRANTY IS EXTENDED TO BUYER ONLY AND IS NOT TRANSFERABLE TO SUBSEQUENT PURCHASERS OR USERS OF GOODS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR OTHERWISE. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. The remedies of Buyer shall be limited to those provided herein. No agreement varying or extending the foregoing warranty, remedies or this limitation will be binding upon Seller unless in writing, signed by a duly authorized officer of Seller.
(e) IN NO EVENT SHALL SELLER’S TOTAL LIABILITY TO BUYER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEED THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES.
(f) Products and Services Provided “AS IS.” Development products, including without limitation prototypes and pre-production samples and any Services (whether or not paid for by Buyer) are provided “AS IS” without warranty of any kind.
10. PATENT INDEMNITY
(a) Seller shall defend, at its own expense, any third-party claim, suit or action brought against Buyer alleging that, without further combination, the design or construction of the Products sold by Seller hereunder directly infringe any United States patent or copyright, but only provided that that:
(i) Seller receives prompt written notice of such claim, suit or action and full opportunity and authority to assume the sole defence thereof, including settlement and appeals, and all information available to Buyer for such defence;
(ii) Said Products were made according to a specification or design furnished by Seller or, if a process patent is involved, the process performed by the goods is recommended in writing by Seller; and
(iii) Provided all of the foregoing conditions have been met, Seller shall, at its own expense, either settle said claim, suit or action or shall pay all damages, excluding consequential and special damages and costs. If the use or resale of such goods is finally enjoined, Seller shall, at Seller’s option, (1) procure for Buyer the right to continue using such products, (2) replace the same with non-infringing products, (3) modify the same so as to make them non-infringing but equivalent, or (4) accept the return of any infringing products and refund the purchase price (less reasonable allowance for use, damage and obsolescence).
(b) Notwithstanding the foregoing, this indemnity does not extend to any suit based upon any infringement or alleged infringement arising from Products furnished by Seller that are: (1) altered in any way by Buyer or any third party if the alleged infringement would not have occurred but for such alteration; (2) combined with any other products or elements not furnished by Seller if the alleged infringement would not have occurred but for such combination; (3) designed or manufactured in accordance with Buyer’s designs, specifications or instructions if the alleged infringement would not have occurred but for such Buyer designs, specifications or instructions; or (4) designed or manufactured in compliance with standards issued by any public or private standards body if the alleged infringement would not have occurred but for compliance with such standards. In no event shall Seller indemnify Buyer, or be liable in any way, for royalties payable based on a per use basis, or any royalty basis other than a reasonable royalty based upon revenue derived by Seller from Buyer from sales of the infringing Products.
THIS PARAGRAPH SETS FORTH SELLER’S ENTIRE OBLIGATION AND BUYER’S SOLE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND BASED ON THE SALE AND USE OF PRODUCTS, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
(c) If any claim, suit or action of infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property right is based on a design or specification furnished by Buyer or on the performance of a process not recommended in writing by Seller, or on the use or sale of the goods delivered hereunder in combination with other goods not delivered to Buyer by Seller, Buyer shall indemnify and hold Seller harmless therefrom.
11. PROPERTY AND OWNERSHIP RIGHTS
Unless otherwise mutually agreed in writing, the development, design, or manufacturing of goods or service by Seller for Buyer shall not be considered to be a work made for hire and shall not give any patent, copyright or any other intellectual property right interest in the goods, or any portion thereof to Buyer. All such rights shall remain the property of Seller. Unless otherwise agreed in writing, all tooling, fixtures, test equipment, models, patterns, moulds, processing software and technology, and proprietary information of Seller, whether or not made for, obtained or developed by Seller for the performance of this contract, shall remain the sole property of Seller; and the payment by Buyer of any costs or expenses relating to any of the foregoing (including non‑recurring expenses), shall not be considered to grant Buyer any ownership interests therein.
Unless otherwise provided in writing, Seller reserves the right to modify specifications of goods ordered by Buyer herein, provided that the changes will not materially affect form, fit or function.
Buyer-requested order changes must be documented in writing and are subject to the prior approval of Seller and the adjustments in price, scheduling and other affected terms and conditions. At any rate, Seller may reject changes that it deems unsafe, technically inadvisable or inconsistent with established engineering or quality standards, or incompatible with Seller’s design or manufacturing capabilities.
(a) Each order from Buyer for Products or services is subject to written confirmation of acceptance by Seller. No order will vary these terms.
(b) Order Changes ‑ Buyer is liable for the costs of any alterations to the goods, services, delivery schedule or specifications requested by Buyer and agreed to by Seller including, but not limited to, cancellation or restocking charges, non‑recurring engineering costs and other expenses, tooling and fixture charges, re‑certification charges, re‑work, wastage, and disassembly labour costs.
(c) NCNR‑ All goods manufactured for Buyer, including all special materials and supplies necessary to perform the work specified, are non‑cancellable and non‑returnable (“NCNR”).
Except as otherwise agreed in writing, Buyer shall not have the right to terminate or reschedule all or any portion or instalment of the Products or Services covered by this contract without the written consent of Seller.
15. BUYER’S DEFAULT
Payment as required by the terms of this contract must be made when due regardless of any claim by Buyer. Failure by Buyer to pay the purchase price when due, or otherwise to perform this contract, constitutes a fundamental breach of contractual obligations and shall give Seller the unlimited right, without liability, to take possession of the Products, with or without notice, and to have all of the remedies of a secured party under the Uniform Commercial Code of the State of Michigan. In addition, Seller, at its option by giving written notice to Buyer of its election to do so, may, cancel any undelivered portions thereof and/or demand immediate payment of all outstanding bills of Buyer. All rights and remedies of Seller shall be cumulative and may be exercised successively or concurrently without impairing Seller’s security interest in the goods. Buyer agrees to pay Seller reasonable attorneys’ fees and legal expenses incurred by Seller in exercising any of its rights and remedies upon default in such amount as is permissible under law. All the foregoing is without limitation or waiver of any other rights or remedies available to Seller according to law or otherwise.
16. LIMITATION ON ACTIONS
No action, regardless of form, arising out of this contract may be brought by either party more than one year after the cause of action arose, or in the case of non‑payment, not more than two years from the date of last payment.
The parties will attempt in good faith promptly to resolve any dispute arising out of this agreement by negotiations between representatives who have authority to settle the controversy. If unsuccessful, the parties will further attempt in good faith to solve the conflict by non-binding third-party mediation, with the cost of such mediation apportioned equally to each side. Discords not resolved by negotiation or mediation may then be presented to a court of competent jurisdiction in accordance with the terms of this agreement. This process is the exclusive procedure for the resolution of all such disputes between the parties.
18. GOVERNING LAW AND VENUE
This agreement and all disputes arising there under will be governed by and interpreted in accordance with the internal laws of the State of Michigan, excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, and its application is expressly excluded. The Parties hereby consent that the state and federal courts with jurisdiction over disputes arising in Wayne County, Michigan will have exclusive jurisdiction over any matter arising under this Agreement. Notwithstanding the foregoing, Seller may, in its sole discretion, bring suit to enforce its rights under this Agreement in the venue and under the governing law of any jurisdiction in which action or inaction of the Supplier is sought or in which Seller-owned assets are located.
19. FORCE MAJEURE
Seller will not be liable for any loss, damage or delay arising out of its failure to perform hereunder due to causes beyond its reasonable control, whether or not foreseeable by either party, including but not limited to, acts of God or the Buyer, acts of civil or military authority, fires, labour disturbances or strikes, floods, adverse weather, epidemics, quarantine restrictions, war, riots, delays in transportation, transportation embargoes, delays of suppliers, or inability of Seller to obtain material. In the event of any such delay, Seller ‘s performance date(s) will be extended for that length of time as may be reasonably necessary to compensate for the delay.
(a) These general terms and conditions, along with any directly associated written Seller specification or quotation, will exclusively govern the sale of licencing by Seller of all goods and services furnished hereunder. No alterations or modifications of the regulations of this contract will be valid and binding upon Seller unless in writing and signed by an authorized representative of Seller. Seller objects to other terms and conditions set forth in Seller’s written specification, quotation or order acknowledgement.
(b) Buyer agrees to obey all applicable export laws, rules and orders. Specifically, but without limitation, Buyer agrees that it will not resell, re-export or ship, directly or indirectly, any Products or technical data in any form without obtaining appropriate export or re-export licenses. Buyer acknowledges that the applicable export laws, regulations and orders may vary from item to item and/or from time to time.
(c) No delay or failure to exercise any right, power or remedy accruing to Seller upon breach or non-performance by Buyer under this contract shall impair any such right, power or remedy of Seller, or shall be construed as a waiver of any such breach or default, or any similar breach or default thereafter occurring; nor shall any waiver of a single breach or default be deemed a waiver of any subsequent breach or default. All waivers must be in writing.
Latest Revision Date: 01/07/2020