STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES FROM THE SUPPLIER
1. APPLICABLE TERMS AND CONDITIONS.
In this document, the following words shall have the following meanings:
1.1 “Agreement” means these Terms and Conditions together with the terms of any applicable Specification Document;
1.2 “Buyer” means the organization or person that purchases goods and services from the Supplier;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyrights, trademarks, know-how and all other forms of intellectual property anywhere in the world that are applicable;
1.4 “Specification Document” means a statement of work, quotation or other similar document describing the goods and services to be provided by the Supplier;
1.5 “Supplier” means ASENSE, a company registered at Paseo de la Castellana 79, 28046, Madrid, Spain with Legal Name Twoptics Systems Design, S.L. and
VAT Registration Number: B65572810; with operating facilities at its headquarters in Barcelona, located at C. Cerdanya, 44, 08820 El Prat de Llobregat, Barcelona, Spain.
Buyer has offered to purchase from Supplier the products and/or services described on the face hereof. Supplier’s acceptance of the offer is expressly conditioned upon Buyer’s acceptance of the terms and conditions set forth herein. Supplier expressly objects to any additional, different, or inconsistent terms previously submitted by Buyer, whether in a purchase order or otherwise, and to the extent there is any difference between this order and the one submitted by Buyer, this order shall be construed as a counteroffer and not an acceptance of Buyer’s terms. Buyer’s failure to file a written objection within five (5) days after receipt hereof, or its acceptance of shipment of the products or performance of the services, shall constitute its acceptance of these final terms and conditions.
2. GENERAL
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Supplier to the Buyer.
2.2 Prior to the commencement of services, the Supplier shall submit to the Purchaser a Specification Document specifying the goods and services to be supplied and the price payable. The Purchaser shall immediately notify the Supplier if the Purchaser disagrees with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
2.3 The Supplier will use all reasonable efforts to complete the services within the estimated timescales, but time will not be of the essence in the provision of any of the services.
3. PRICE AND PAYMENT METHODS
3.1 The price for the supply of goods and services shall be as set out in the Specification Document. The Supplier shall invoice the Buyer for reasonable management costs incurred in providing such services.
3.2 Buyer shall pay the purchase price set forth on the face of this order, including appropriate nominal handling charges.
3.3 Invoiced amounts shall be due and payable as agreed in the service contract between the Supplier and the Buyer. If the Buyer’s procedures require an invoice to be submitted against a purchase order for payment, the Buyer shall be responsible for issuing such a purchase order before the goods and services are supplied.
3.4 Any and all taxes or fees imposed by any federal, state, municipal, or other governmental authority applicable to the Products, together with any freight, insurance, duties, tariffs, and brokerage charges, shall be added to the price and paid by the Buyer, except where the Buyer has provided an appropriate certificate of exemption from them. The Buyer shall be responsible for the payment of such taxes and fees, even if they are not added to the invoice price.
3.5 Unless otherwise agreed by the Supplier, any Product ordered shall be paid for within thirty (30) days from the date of shipment or as otherwise agreed in the service contract between the Supplier and the Buyer. All prices and charges are denominated and shall be paid in EURO currency or as otherwise agreed in the service contract.
3.6 Late payments after 30 days may be subject to late fees or penalties. Supplier reserves the right at any time to alter or suspend credit or to change credit terms when, in its sole discretion, Buyer’s financial condition does not warrant it. In such event, Supplier may require cash payment, an irrevocable letter of credit, or additional security from Buyer prior to further production or shipment, may accelerate the date of any payment, and may suspend production, withhold any shipment, or cancel any further production, in addition to any other rights or remedies it may have pursuant to applicable law. In the event of Buyer’s bankruptcy or insolvency, or in the event Buyer commences proceedings under bankruptcy or insolvency laws, Supplier may have the right to cancel any then-pending order without liability and will receive reimbursement of its cancellation fees in accordance with Section 4 hereof.
4. PRODUCT SPECIFICATIONS
All products shall be required to conform solely to the specifications in the Specification Document. For the avoidance of doubt, no description, specification, or illustration contained in any product documentation or other sales or marketing literature of the Supplier, nor any written or oral representation, correspondence, or statement, shall form part of the contract.
5. DELIVERY
5.1 The delivery date specified by the Supplier is an estimate only. Delivery time shall not be of the essence of the contract, and the Supplier shall not be liable for any loss, cost, damage, charge, or expense caused directly or indirectly by any delay in delivery of the goods.
5.2 The Supplier will determine the shipping schedule after receiving all items and information necessary for the design, manufacture and testing of the Products.
5.3 All risks of the goods shall be transferred to the Buyer at the time of delivery.
5.4 All shipment release schedules requested by Buyer for open purchase orders must be submitted in writing to Supplier. Supplier will use commercially reasonable efforts to comply with the requested shipment schedule and will acknowledge the actual schedule in writing within ten (10) days of receiving the shipment schedule request.
5.5 In the event that a shipping method other than that set forth in Section 3 (3.2) hereof is specified, the price will be adjusted to reflect any increase or decrease to the extent that the cost of shipping is or will be included therein. The transfer of title and/or risk of loss shall not be affected by the terms of delivery, shipping instructions, or storage on behalf of the Buyer by the Supplier at its facilities. Upon written notice to the Buyer, the Supplier may elect to obtain insurance covering the Products during shipment, and the Buyer shall promptly reimburse the Supplier for the cost thereof.
6. CANCELLATIONS AND REQUESTS FOR CHANGES IN DELIVERY TIMES
6.1 Once accepted by the Supplier, this order may only be cancelled with the Supplier’s written consent. If the Supplier consents to such cancellation, the Buyer shall pay the Supplier, within thirty (30) days of such notice, the cancellation fees and charges determined by the Supplier in accordance with the following:
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- For Standard Optical and Mechanical Products: One hundred percent (100%) of any non-recurring charges related to Buyer’s order plus any materials, labor, and subcontract costs, including cancellation fees related to canceled units owed to Supplier’s suppliers and subcontractors, plus twenty-five percent (25%) of the sales price of the canceled order. Canceled Products and materials remain the property of Supplier.
- For Custom Optical Products: Written notice of cancellation of any Product scheduled for shipment must be given at least sixty (60) days prior to such scheduled shipment date, and as soon as possible for any unscheduled or unreleased Product. Cancellation fees will include one hundred percent (100%) of non-recurring charges.
Buyer must pay Supplier the contracted price for all Products completed prior to such cancellation notice (finished goods), and an amount equal to the percentage of completion of each remaining Product unit multiplied by the unit selling price of that Product. Buyer shall also be responsible for all cancellation charges incurred by ASE for materials, components, and subcontracted items purchased by Supplier prior to the cancellation date that were necessary to complete the canceled orders. Buyer is entitled to receive all finished custom optics products for which cancellation charges are fully paid.
6.2 In the event that the Supplier incurs additional costs due to the Buyer’s inability to accept delivery of the Products or to allow normal and unrestricted installation of the goods, where such installation is required, the Buyer shall reimburse such additional cost to the Supplier.
6.3 Once scheduled or released for shipment, Products will not be descheduled or reclassified as unreleased. All Products must be released by the Buyer to allow for shipment before the contract completion date. Product units not released as described will be considered canceled, and the terms of this Section will apply.
7. INSPECTION AND REJECTION
Buyer will fully inspect all standard and/or customized Products delivered within 30 days of receipt. If such inspection and testing reveals any deficiency or nonconformity, Buyer shall notify Supplier in writing pursuant to Section 8. WARRANTY. If Buyer fails to file a claim within such time period, or uses the Products, such failure or use shall constitute irrevocable acceptance of the Products.
In the special case of rejection of standard Products for convenience, such rejection shall be made in writing within thirty (30) days after shipment of the standard Products from Supplier, shall be subject to the charges specified in Section 6.1(a), and shall be returned to Supplier pursuant to Section 8. Returns for convenience of personalized or customized Products are not permitted. In all cases, Buyer shall not return any Products to Supplier unless a written Return Authorization Number is first requested and Supplier authorizes such return.
8. WARRANTY
8.1 Supplier warrants that its Products are free from defects in materials and workmanship and conform to Supplier’s standards or agreed specifications, whichever is applicable for such Products, for a period of one (1) year after shipment by it or as an authorized reseller, provided that Buyer notifies Supplier in writing of such defects within thirty (30) days after first evidence of such defect. The warranty is limited, at Supplier’s sole discretion, to the replacement or reprocessing of defective Products or the return of that portion of the purchase price applicable to defective Products. The determination of whether a nonconformity is a valid warranty claim is at Supplier’s sole discretion.
8.2 This warranty does not apply to Products damaged by, or failure due to, abuse, misuse, alteration, accident, negligence (other than that of the Supplier), improper storage, maintenance, or operation; abnormal conditions of temperature, humidity, dirt, or corrosion; or repair or alteration by anyone other than an authorized representative of the Supplier. The Supplier is not liable for any expenses incurred by the Buyer to correct or repair any alleged defect unless previously approved in writing by the Supplier. This warranty does not apply to, and the Supplier assumes no liability for, the failure of any Product to meet the specifications provided by the Buyer where the Supplier has previously indicated that its products may not meet the Buyer’s specifications.
8.3 The Buyer must inspect the Product within 30 days of receipt. The Buyer must obtain a Return Authorization Number to return any Product, which expires after thirty (30) days. All Products returned for warranty service must be returned in the original packaging and protected with a suitable shipping box. The Buyer is responsible for the risk of loss and all costs associated with returning the Product to the Supplier. The Buyer is also responsible for return shipping charges and the price of labor associated with diagnosing and retesting Products found to be compliant. Non-conforming Products (valid warranty claims) will be returned prepaid.
8.4 The Supplier’s warranty does not extend to materials or equipment purchased by it from other manufacturers and resold (whether in their original form or as a component of the Products) to the Buyer, and the Supplier assigns to the Buyer any transferable rights it may have arising from any warranties granted by such manufacturer with respect to such materials or equipment.
9. LIMITATION OF LIABILITY.
Buyer’s sole and exclusive remedies shall be those specifically set forth in the Warranty section hereof. Supplier’s maximum liability for any and all claims arising directly or indirectly from the performance of its obligations hereunder shall not exceed, in the aggregate, the purchase price of the Products in question. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFITS OR ANY OTHER LOSS.
10. COMPENSATION.
Buyer acknowledges that Supplier has no control over, and is not responsible for, the manner in which Buyer uses or handles the Products. Buyer indemnifies, holds harmless Supplier, and agrees to assume full responsibility for any and all actions, claims, or demands arising out of or in any way related to all amounts that Supplier and/or Buyer are obligated to pay, caused by or resulting directly or indirectly from the use or operation of the Products.
11. CONFIDENTIAL INFORMATION.
The parties will enter into the Provider’s standard Non-Disclosure Agreement, unless an alternative agreement is mutually agreed upon, to establish the terms and conditions applicable to confidential information.
12. NON-PAYMENT
12.1 Supplier shall have the right to immediately suspend performance or terminate all or part of this order in the event Buyer fails to pay any amount to Supplier when due. B. In the event of nonpayment, Supplier shall have and may exercise all rights and remedies under the Uniform Commercial Code. Buyer shall also be liable to Supplier for all collection costs, including reasonable attorneys’ fees and costs, incurred by Supplier in the event of Buyer’s default.
13. EXCUSABLE FAILURE OR DELAY
Supplier shall not be liable for failure or delay in delivery, nor Buyer for failure or delay in acceptance of material hereunder, if such failure or delay is due to an act of the public enemy, war, governmental acts or regulations, fire, flood, embargo, quarantine, epidemic, labor strikes, accident, unusually severe weather, or other cause, whether similar or dissimilar to the foregoing, beyond its control. In the event of failure or delay in delivery or acceptance for any such reason, the quantity provided for in the order may be reduced accordingly by written notice from either party to the other.
14. CHANGES IN THE STRUCTURE OF THE APPLICABLE LAW
The terms and conditions of this acceptance constitute the sole terms that will govern this Buyer’s order. No other agreement, quotation, or acknowledgment from Buyer that in any way modifies any of the provisions of Buyer’s order will be binding on Supplier unless made in writing and accepted in writing. This order will be governed by and construed in accordance with the laws of Spain and the European Union, without regard to the conflict of laws principles thereof.
15. CUSTOM MOLD TOOLING
Tooling manufactured under NRE’s exclusive development is explicitly designed for the Supplier’s manufacturing methods, and is therefore considered the Supplier’s property. The tooling must be maintained under the Supplier’s control and in the Supplier’s facilities. Exclusive tooling paid for by Buyer is the Buyer’s property and will be used solely for Buyer’s use unless approved by Supplier.
16. NOTICES
Any notice required to be delivered by either party to the other may be delivered by email, fax, personal service, or by post to the other party’s address shown in the Specifications Document or to any other address communicated in writing, and if sent by email, unless proven otherwise, shall be deemed received on the day it is sent. If sent by fax, it shall be deemed served upon receipt of an error-free transmission report; if delivered by letter, it shall be deemed served at the time the letter is personally delivered; or if sent by post, it shall be deemed delivered in the ordinary course of the mail.
17. COMPLETE AGREEMENT
This Agreement contains the entire agreement between the parties regarding its subject matter and supersedes any prior agreement, arrangement, commitment, or proposal, whether oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may only be modified by a document signed by both parties.
18. SPECIFIC TECHNICAL RESPONSIBILITIES: TECHNICAL SUPPORT / CONSULTING
18.1 The Supplier makes every effort to ensure that the support and advice provided to the Purchaser is accurate and appropriate. However, any advice, suggestion, or recommendation offered by the Supplier, whether as part of the Specification Document, another written document, or verbally, cannot be guaranteed to be accurate or appropriate.
18.2 The Supplier does not guarantee any level of support, response time or availability unless detailed in the Specification Document, a separate support contract or a service level agreement that has been agreed to by both the Buyer and the Supplier.
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