GBC ADVANCED MATERIALS SALES CONDITIONS
The term “Supplier” and “Buyer” used throughout this, Sales Order refer to the Buyer and Supplier identified on the Order.
GENERAL:
Buyer acknowledges that any and all Components supplied by Supplier pursuant to this Sales Order shall constitute Standard Products or Buyer Designed Products (Products) as described in the Order. Order means the Buyers Order for the Products (but excluding any terms and conditions which the Buyer may purport to apply in any such order). Standard Products means any Component and off the shelf products which are generally sold by the Supplier to any of its customers subject to the Standard Specification. Standard Specification means the Suppliers specification for a Standard Product. “Buyer Designed Product” is defined as any Component made by Supplier in accordance with all or any of Buyer’s designs, specifications, parameters or machining or detailed part drawings, together with any design and applications engineering support provided by Supplier to Buyer in respect of any Component (Buyer’s design specifications). “Component” is defined as a manufactured piece of an implantable device. Buyer further acknowledges that any drawing, specification, depiction or prototype of any Buyer Designed Product provided to Buyer by Supplier hereunder has been prepared solely in accordance with Buyer’s design specifications, and Buyer acknowledges that all Components supplied by Supplier pursuant to this Sales Order are subject to Buyer’s inspection, testing and approval, wherein such approval shall certify that the Component is a Buyer Designed Product made in accordance with Buyer’s design specifications for the Component or a Standard Product or any prototype of same. A “prototype” is defined as a non-final type, form, or instance of a Component. BUYER AGREES THAT ANY PROTOTYPE OF ANY BUYER DESIGNED PRODUCT SUPPLIED BY SUPPLIER WILL BE USED SOLELY FOR BENCH TEST EVALUATION AND CHARACTERIZATION AND THAT SAID PROTOTYPE WILL NOT BE IMPLANTED INTO HUMANS OR PUT TO USE IN HUMAN CLINICAL TRIALS WITHOUT SUPPLIERS PRIOR WRITTEN CONSENT. BUYER HAS TESTED OR WILL TEST THE PROTOTYPE OF ANY BUYER DESIGNED PRODUCT, AND BUYER HEREBY ACKNOWLEDGES AND AGREES THAT SAID PROTOTYPE MEETS BUYER’S SPECIFICATIONS.
ACCEPTANCE:
Upon acceptance of this Sales Order, Supplier agrees to supply and Buyer agrees to purchase the Components described for the specified prices (provided that Supplier may adjust prices for Components using precious metals to reflect cost increases for the relevant precious metal(s) prior to shipment or performance). UNLESS ACCEPTED IN WRITING BY AN EXECUTIVE OFFICER OF SUPPLIER, ANY ADDITIONAL, DIFFERENT OR INCONSISTENT TERMS OR CONDITIONS IN BUYER’S ACCEPTANCE OF THIS Sales Order, INCLUDING ANY DIFFERENT OR ADDITIONAL DRAWINGS, SPECIFICATIONS, PERFORMANCE STANDARDS, TESTING REQUIREMENTS OR THE LIKE NOT ATTACHED TO OR INCORPORATED BY REFERENCE IN THIS Sales Order, WHETHER IN THE FORM OF A PURCHASE ORDER, ACKNOWLEDGMENT, CONFIRMATION OR OTHERWISE, ARE OBJECTED TO BY SUPPLIER AND SHALL NOT BE BINDING ON SUPPLIER NOR HAVE THE EFFECT OF PREVENTING THE FORMATION OF A CONTRACT OR OF VARYING OR OTHERWISE LEAVING OPEN ANY TERMS OR CONDITIONS. Neither Supplier’s failure to respond to any such additional, different or inconsistent terms or conditions, nor Supplier’s commencement of performance shall constitute assent thereto. These Sales Conditions form part of, and are to be interpreted together with, the body of the Sales Order to which they are attached and any contract resulting here from (the “Contract”). In the event of any conflict or inconsistency between these Sales Conditions and the body of the Sales Order, the latter will prevail. This Sales Order may be revoked by Supplier at any time prior to acceptance by Buyer. Supplier may begin work on the Components covered by this Sales Order based upon Buyer’s oral or e-mail confirmation of acceptance to be subsequently confirmed in writing by Buyer. IN THE EVENT WRITTEN CONFIRMATION IS NOT RECEIVED, OR SUCH WRITTEN CONFIRMATION PURPORTS TO IMPOSE DIFFERENT OR ADDITIONAL DRAWINGS, SPECIFICATIONS, PERFORMANCE STANDARDS, TEST REQUIREMENTS OR THE LIKE, SUPPLIER MAY TERMINATE THIS Sales Order AND ANY CONTRACT AND CEASE ALL SUCH WORK. BUYER AGREES TO REIMBURSE SUPPLIER UPON DEMAND FOR ALL COSTS AND EXPENSES REASONABLY INCURRED OR COMMITTED IN PERFORMING OR PREPARING TO PERFORM IN ACCORDANCE WITH THIS Sales Order, PLUS 15%.
ASSIGNMENT:
This Sales Order is issued solely to Buyer and is non-transferable. Supplier may assign any Contract, in whole or in part, to any affiliate of Supplier, or to any purchaser of substantially all of Supplier’s business or assets related to performance hereof.
PRODUCTS:
Buyer agrees to indemnify and hold harmless Supplier and its affiliates, parents, shareholders, directors, officers, employees, successors and assigns from and against any and all liabilities, demands, claims, assessments, costs, judgments, awards, fines, sanctions, penalties, charges, damages, expenses (including any amounts paid in settlement, investigative costs, court costs and attorneys’ fees and costs), including those asserted by the Buyer or its parent, subsidiaries, directors , officers, employees, shareholders, affiliates and agents , successors and assigns or losses at any time incurred by any of them as a result of the manufacture or sale of Components or Products or any prototype of same , purchased by Buyer from Supplier hereunder, arising out of, related to or in connection with, in whole or in part, the design, manufacture, sale, re-sale or use of the Components or Products by any person, or any documentation or other data furnished by Supplier pursuant to the Contract or this Sales Order, including without limitation, any manufacture, sale, re-sale or use of any thereof and any claims for personal injury, infringement, property damage or other economic loss, whether arising in contract, tort or under any other legal theory (including negligence of Supplier or strict liability). Buyer’s duty to defend Supplier against any such claims is triggered by written notice of any such claim submitted to Buyer by Supplier or on Supplier’s behalf. Supplier shall have the right to approve defense counsel retained to represent Supplier in any such claim, said approval not to be unreasonably withheld. Supplier’s delivery of not less than ninety percent of the quantity of each Product covered hereby will constitute satisfaction of Supplier’s obligations. Notwithstanding the foregoing, Buyer agrees to accept and pay for up to one hundred ten percent of the quantity of each such component covered hereby.
CANCELLATION/CHANGES:
Buyer may cancel or modify this agreement only with Supplier’s written consent, which may be granted or withheld at Supplier’s sole discretion. Supplier may condition its acceptance of any change order or cancellation on Buyer’s payment of a change or cancellation charge, as applicable, or a modification of any delivery estimates or performance timetables. Any such charge will be set by Supplier in an amount sufficient to reimburse Supplier for any costs incurred or committed in performing or preparing to perform the order prior to such change or cancellation, to compensate Supplier for any loss of profit occasioned by such change or cancellation, and to reflect any increased costs of performance likely to be incurred by Supplier as a result of any accepted change order or cancellation.
CONFIDENTIALITY:
Confidential Information means: (a) trade secrets and proprietary and confidential information of Supplier which is disclosed by Supplier to Buyer and all analyses, compilations, studies, prototypes or other documents or materials prepared by Buyer which may incorporate such information; and (b) the existence of a relationship between Buyer and Supplier and all information associated with such relationship. Buyer shall keep in confidence and not use other than for the sole benefit of Supplier, nor disclose or make available to any third party any Confidential Information. Confidential Information may be disclosed only to those employees of Buyer who (i) reasonably require access to such information for the benefit of the relationship between Buyer and Supplier; (ii) have been informed of the confidential nature of the Confidential Information; and (iii) agree to act in accordance with the terms and conditions of this confidentiality section. Buyer may only publish, use or disclose Suppliers name or identity(including, without limitation, in any advertisement, news release or patent application) with the prior written approval of Suppliers authorized representative.
INSPECTION AND TESTING:
Buyer shall inspect and test all Components and Products supplied by Supplier and shall verify that said Components and Products meet all Buyers design specifications and the requirements of any Contract and are suitable for Buyers use in an implantable device. Upon discovery of any nonconforming Component supplied to Buyer (each, a “Non-Conforming Component”), Buyer shall promptly notify Supplier of same. Should Buyer determine that any Component or Products supplied by Supplier hereunder does not meet all requirements of any Contract or Buyer’s design specifications or are not suitable for Buyers use in an implantable device, the parties agree to enter into further good faith negotiations regarding the supply of additional Components by Supplier to Buyer under this Sales Order. Absent further agreement, nothing herein shall create any legal obligation on either party to proceed with the supply of any additional Components with respect to Non-Conforming Components. Buyer acknowledges that the fees and costs payable pursuant to this Sales Order will remain due and payable as contemplated under any Contract, notwithstanding that the Components do not meet any or all of Buyer’s requirements.
BUYER AGREES THAT NON-CONFORMING COMPONENTS SHALL NOT BE INCORPORATED INTO ANY DEVICE WHICH IS OR MAY BE IMPLANTED INTO HUMANS.
DELIVERY:
Supplier will use commercially reasonable efforts to meet any delivery estimates and performance timetables specified in this Sales Order. IN NO EVENT WILL SUPPLIER BE LIABLE FOR DELIVERY OR PERFORMANCE DELAYS, REGARDLESS OF CAUSE. All Components or other deliverables shall be delivered FOB the Supplier’s named facility. Buyer must inspect all deliveries upon receipt. Notification of Supplier in respect of defects, shortages or non-conformities reasonably discoverable by inspection must be asserted in writing within thirty (30) days after receipt or will be deemed waived, except that any waiver shall not release Buyer from its obligation to inspect and test all Components supplied by Supplier for any Non-Conforming Component.
DRAWINGS & DOCUMENTATION:
Ownership of all drawings, inventions, bills of materials, flow diagrams, plot plans, details, specifications and other data or documentation (regardless of medium) held by Supplier prior to undertaking work on the Buyer Designed Products and all associated intellectual or industrial property rights shall be and remain the property of Supplier, and Buyer will execute such confirmatory assignments as Supplier may from time to time request. Ownership of all design, drawings, specifications, inventions and all associated intellectual or industrial property rights in the Standard Products shall remain with and vest in Supplier. Buyer will use any product manuals or documentation (regardless of medium), including installation, maintenance, operation and authorized repair of the Components. Buyer’s use and disclosure of any such manuals or other documentation shall be subject to any confidentiality or nondisclosure agreement between Supplier or Buyer and the obligations set out in the section headed CONFIDENTIALITY above.
EQUAL EMPLOYMENT OPPORTUNITY:
There are incorporated into this Sales Order and any Contract the provisions of Executive Order 11246 (as amended) of the President of the United States on Equal Employment Opportunities and the rules and regulations issued pursuant thereto, with which Buyer represents it will comply, as applicable. Supplier represents that with respect to the production of the Components under this Contract, the Supplier will fully comply with section 12(a) of the Fair Labor Standards Act 1938 as amended, and the Equal Employment Opportunity Regulations.
GOVERNMENT CONTRACTS:
If the Components are purchased by Buyer pursuant to or in connection with a U.S. Government contract or subcontract, Buyer shall promptly notify Supplier in writing of those provisions, if any, of the Federal Acquisition Regulations and/or of the Defense Federal Acquisition Regulations Supplement (collectively, the FARS/DFARS) that are required to be included in the Contract. The pertinent provisions of the FARS/DFARS described in such notification that are so required to be included will be applicable hereto and will be incorporated herein by reference from and after the date such notification is received by Supplier.
EXPORTS:
All sales, shipments, and sharing of technical data, both domestically and internationally, by Supplier, its divisions, and subsidiaries, are done so in accordance with all applicable United States laws and regulations, including, but not limited to, the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), Iranian Transaction Regulations (ITR) and the International Emergency Economic Powers Act (IEEPA) and any controls thereunder, and/or amendments thereof. By accepting this agreement Buyer confirms that they are not located in (or a national resident of) any country under United States or United Nations embargo or sanction, not identified on any United States Department of Commerce Denied Persons List, Entity List, United States Department of State Debarred Parties List, and/or the United States Department of the Treasury’s Specially Designated Nationals list, and not directly or indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the EAR. Upon Suppliers request, Buyer agrees to provide all information pertaining to the actual routing of Components to be exported and the intended use thereof. Any routing and/or use of Components contrary to the laws and Regulations of the United States or country in which they are being used is prohibited.
FORCE MAJEURE:
Supplier shall have no liability or be in breach for any failure or delay in performance due to strikes, lockouts, concerted acts of workmen or other industrial disturbances, fires, explosions, floods or other natural catastrophes, civil disturbance or riots, armed conflict whether declared or undeclared, terrorist acts, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, engineering, Buyer’s technical or Buyer’s design specifications difficulties; adverse future government action, energy or utilities, accidents, acts of God, delays of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations, embargoes or any other similar or dissimilar cause which is beyond the reasonable control of Supplier.
DISPUTE RESOLUTION – CHOICE OF LAW AND VENUE:
The U.N. Convention on the International Sale of Goods shall not apply to the transactions contemplated herein. This Sales Order and any Contract shall be governed by and construed according to the laws of the state of New York, USA, without regard to its principles of conflicts of laws. All disputes arising out of this Sales Order or any Contract will be brought solely in the state or federal courts having jurisdiction over the county in which Supplier’s facility named in this Sales Order is located, and Buyer consents to the personal jurisdiction of and laying of venue in any such court, and waives any objection based on lack of personal jurisdiction or forum non conveniens.
INVOICES & PAYMENT:
Payment will be due 30 days after the date of Supplier’s invoice. All overdue amounts will bear interest at the lesser of 1.5% per month or the highest rate allowed by law. If any amount due hereunder is collected through a collection agency or attorney, Buyer will pay Supplier’s cost of collection, including reasonable attorneys’ fees. Supplier reserves and Buyer grants a present and continuing first priority purchase money security interest and lien over all Components sold hereunder until the purchase price therefor has been paid in full. Buyer irrevocably appoints Supplier as attorney-in-fact to execute, if necessary, and file any and all documentation required by law or deemed necessary and appropriate by the Supplier to effect, protect and continue Supplier’s security interest.
SUPPLIER LIABILITY:
Under no circumstances will Supplier be liable, whether in contract, tort otherwise (including based on negligence or strict liability), for any special, indirect, incidental, punitive or consequential damages of any kind or for any loss of profits (direct or indirect), direct or indirect loss of business, direct or indirect loss of goodwill, direct or indirect loss of anticipated savings or business opportunity. Without limiting any other provision hereof, Supplier’s maximum liability for direct damages in respect of any Components furnished to Buyer shall not exceed the actual price paid to Supplier in respect thereof which are subject to the claim. Buyer covenants that its use of any Products furnished hereunder will comply with all applicable laws and regulations, and with any applicable product specifications and documentation.
TAXES:
Quoted prices do not include any excise, sales, value added, goods and services, privilege, use or similar taxes or levies, or import or export duties payable in connection with sale or delivery of any Buyer Designed Products, all of which shall remain the sole responsibility of Buyer. If Supplier is required to collect or pay any such taxes, levies or duties, Buyer will pay such amounts to Supplier upon invoice.
WAIVER:
No waiver of any term or condition by Supplier shall be valid unless in writing, and no such waiver will constitute a precedent or waiver of the same or any other term or condition on any future occasion.
WARRANTY:
Supplier warrants that, under proper and normal use, any Components supplied by it (other than prototype) will be free from defects in material and workmanship, other than defects attributable to Buyer’s design specifications, for a period of 30 days from the date of delivery. With respect to any raw material, element or sub-component of a Component not manufactured by Supplier, Supplier’s sole obligation will be to assign to Buyer any rights under any warranties in favor of Supplier from the vendors thereof, to the extent permitted by the terms hereof. Supplier further warrants that, at delivery, the Components (other than prototype) manufactured by it will perform in all material respects in accordance with any performance specifications expressly referenced in this Sales Order, except for failures to perform attributable to Buyer’s design specifications. If any such specifications provide for performance or acceptance test(s), compliance with such performance specifications shall be exclusively determined by the result of such test(s), and Supplier’s liability under this warranty will terminate upon successful completion of such test(s) or, sixty (60) days after delivery if such performance or acceptance test(s) are not completed within such period for reasons beyond Supplier’s control. If, during the applicable warranty period, any warranted Component fails to conform to the applicable warranties, Supplier’s sole obligation, and Buyer’s sole remedy, will be, at Supplier’s option, to repair or replace the Non-Conforming Component, FOB Supplier’s facility, or to refund the price paid to Supplier therefor, provided in each case that Buyer shall give Supplier immediate written notice upon discovery of such non-conformity, specifying in reasonable detail the nature thereof. Supplier will have the option of requiring the return of the allegedly Non-Conforming Component, freight prepaid, to verify the claim. The remedies in this paragraph will be Buyer’s sole remedies for failure or underperformance of a Non-Conforming Component and under no circumstances will Supplier be liable for any damages, including any special, indirect, incidental, punitive or consequential damages of any kind, or for any loss of direct or indirect profits caused by failure or underperformance of Components. Repairs or alterations made without Supplier’s written consent shall render all of Supplier’s warranties void and of no effect. Buyer shall be solely responsible for all defects or damages attributable to Buyer or conditions (including damage) of or to any Component after delivery, including as a result of the use of such Component with any other component or raw material not provided or approved in writing by Supplier.
EXCEPT AS EXPRESSLY PROVIDED IN THE “WARRANTY” SECTIONS ABOVE, SUPPLIER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY COMPONENT, SUPPORT ASSISTANCE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND SUPPLIER HEREBY DISCLAIMS SAME. ANY INPUT FROM SUPPLIER REGARDING ANY ASPECT OF THE COMPONENTS OR SUITABILITY FOR ANY APPLICATION IS PROVIDED SOLELY AS A CONVENIENCE TO BUYER, ON AN AS-IS BASIS AND WITHOUT ANY WARRANTY (EXPRESS OR IMPLIED) AND DOES NOT CONSTITUTE A RECOMMENDATION OR SUGGESTION AS TO ANY ASPECT OF THE BUYER DESIGNED PRODUCTS OR USE FOR ANY PARTICULAR APPLICATION.
MISCELLANEOUS:
Except as otherwise expressly provided in a written document signed by both parties, this document constitutes the entire agreement between the parties and all prior agreements and communications between the parties are hereby merged into this agreement. All notices required under this agreement shall be in writing and sent by commercially reasonably means. In case any provision of this agreement should be or become unenforceable under applicable law, that provision will be severed and the remaining provisions will remain in effect.