Molex Standard Terms and Conditions for the Americas Region, US, Canada, Brazil and Mexico

Transcription

1 Molex Standard Terms and Conditions for the Americas Region, US, Canada, Brazil and Mexico ACKNOWLEDGEMENT YOUR ORDER IS ACCEPTED SUBJECT TO THE MOLEX TERMS AND CONDITIONS APPEARING HEREON Controlling Provisions. These terms and conditions shall supersede any provisions, terms and conditions contained on any purchase order, confirmation order, or other writing of Buyer required for quotation, and Seller expressly rejects any such terms of Buyer, and the rights of the parties shall be governed exclusively by the provisions, terms and conditions hereof. Seller makes no representations of warranties covering this order except such as are expressly contained herein, and these terms and conditions may not be changed or modified except by mutual agreement of the parties. Quotations & Prices. Prices are Free Carrier (FCA) the named Molex Manufacturing Plant or Molex Distribution Center per Incoterms 2010 unless otherwise expressly agreed to in writing by the Seller. Prices are subject to change upon notification by Seller. Seller reserves the right to increase prices upon giving notice to the Buyer. Written quotations automatically expire thirty (30) calendar days from the date issued and are subject to termination by notice within that period. Taxes. Prices for the products specified herein are exclusive of all city, state and federal excise taxes, including, but without limiting the generality of the foregoing, taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Wherever applicable, such tax or taxes will be added to the invoice as a separate charge to be paid by Buyer. Delays. Performance of orders and contracts, and delivery and shipment of products are subject to, and contingent upon, delay directly or indirectly caused by, or in any manner arising from, fires, floods, accidents, riots, acts of God, war government interference, embargoes, priorities, regulations, orders and restrictions, strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays, Seller's production schedules, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond Seller's control and Seller shall not be liable for any loss or damage suffered by Buyer arising therefrom. Seller shall have the right, in the event of the happening of any of the above contingencies, at its option, to cancel this order or contract or any part thereof without any resulting liability. Partial Shipment. All shipments by Seller may be within 10% over or under the exact quantity ordered by Buyer, and price for order will be adjusted by the unit amount for such overage or Molex, LLC 2222 Wellington Court, Lisle, IL USA main fax molex.com

2 underage, if any. Seller reserves the right to make delivery in installments, unless otherwise agreed upon in writing between Buyer and Seller. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Pricing. The total release quantity used for pricing must be requested for shipment. If multiple shipments are required, all requested shipments must be within a sixty (60) calendar day period after purchase order placement, unless specifically agreed to in writing by Seller. Modifications in schedule made by Seller will not affect Buyer pricing. Invoicing is based on the Buyer accepting all scheduled shipments. If shipments are cancelled or reduced in quantity, Seller reserves the right to invoice with prices based on the actual shipped quantity meeting the indicated requirements. Storage. In case of delay in shipment because of Buyer, then Seller may place the products in storage and Buyer shall pay all handling, insurance and storage charges. Unless otherwise expressly agreed, Buyer shall pay such charges promptly upon receipt of invoice and shall pay for products placed in storage in accordance with the terms originally specified by Seller. Delivery & Title. Unless otherwise agreed upon in writing, in the case of domestic and export shipments, delivery of products to the common carrier or licensed trucker shall constitute delivery to Buyer at which time title shall transfer to Buyer and all risk of loss or damage in transit shall be borne by Buyer. Cancellation. This order shall not be cancelable by the Buyer for delays in delivery or other cause until ten (10) days after written notice of such intention has been actually received and accepted by Seller, and Buyer shall be obligated to accept any goods shipped or delivered by Seller during such period. This order can be cancelled without fault on Seller's part only with Seller's consent and upon terms that will indemnify it against loss. Tolerance. Products furnished by Seller are to be within the limits and of the sizes published by Seller unless otherwise agreed to in writing by Seller and Buyer and subject to Seller's standard tolerance for variations. Representations and Warranty Express Product Warranty. Seller represents and warrants to Buyer for a period of one (1) year* from the date of delivery of the Products to Buyer that (i) the Products shall conform to the Seller s specifications for the Products in force at the date of delivery of the Products to Buyer, and (ii) the Products shall be free from material defects in materials and manufacturing.

3 *Ninety (90) days for the following Products: Polymicro Products and Affinity Products Disclaimer of Warranties. BUYER S REMEDIES ARE SPECIFICALLY LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCTS OR THE RE- PERFORMANCE OF THE SERVICES, AS APPLICABLE, DURING THE WARRANTY PERIOD, AND ARE EXCLUSIVE OF ALL OTHER REMEDIES. SHOULD THESE REMEDIES BE FOUND INADEQUATE OR TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, BUYER AGREES THAT RETURN OF THE AMOUNT PAID BY BUYER TO SELLER UNDER THE CONTRACT SHALL PREVENT THE REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE AND SHALL BE CONSIDERED BY BUYER AS A FAIR AND ADEQUATE REMEDY. SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OBLIGATIONS IN THOSE INSTANCES WHERE THE FAILURES RESULTED FROM (I) THE MODIFICATION OF THE PRODUCTS BY BUYER OR ITS CUSTOMERS, (II) IMPROPER HANDLING, STORAGE INSTALLATION, MAINTENANCE OR ANY FAILURE TO FOLLOW ACCEPTED INDUSTRIAL PRACTICE OR ANY SPECIFIC INSTRUCTIONS PROVIDED BY SELLER, (III) BUYER HAS USED OR REPAIRED THE PRODUCTS AFTER DISCOVERY OF THE DEFECT WITHOUT SELLER S PRIOR WRITTEN CONSENT, (IV) BUYER REFUSES TO PERMIT SELLER TO EXAMINE THE PRODUCTS AND OPERATING DATA TO DETERMINE THE NATURE OF THE DEFECT CLAIMED; (V) BUYER FAILS TO MEET ITS OBLIGATIONS OR (VI) ANY OTHER CAUSE BEYOND THE CONTROL OF SELLER. PRODUCTS NOT MANUFACTURED BY SELLER ARE SUBJECT ONLY TO WARRANTIES OF MOLEX S VENDORS AND SELLER HEREBY ASSIGNS TO BUYER ALL RIGHTS IN SUCH VENDOR S WARRANTIES, HOWEVER, SELLER SHALL FURNISH TO BUYER REASONABLE ASSISTANCE IN ENFORCING SUCH RIGHTS. EXCEPT AS EXPRESSLY PROVIDED ABOVE, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. Claims. Claims for defective products, shortages, delays, or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer unless made in writing

4 within five (5) days after arrival of said products. A Return Material Authorization from Seller shall be required for any product returned to Seller. No claims will be considered for goods altered, defaced or upon which any additional operation has been performed, and no claims will be allowed for labor, rework, transportation or other expense incurred by the Buyer, without prior written approval of the Seller. If the products fail to meet the warranty specified in the paragraph on express product warranty above, Buyer shall not return them but shall notify Seller within the five (5) day period, stating full particulars in support of its claim, and Seller will, at its option, either replace the products upon return of the defective or unsatisfactory material or adjust the matter fairly and promptly. SELLER DOES NOT WARRANT OR GUARANTEE THE TECHNICAL ADVICE GIVEN BY IT IN CONNECTION WITH THE INSTALLATION OR THE USE OF PRODUCTS SOLD HEREUNDER. Limitation of Liability. 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, TORT, 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. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF SELLER AND ITS AFFILIATES BE IN EXCESS OF AN AMOUNT EQUAL TO THE LESSER OF (1) THE PRICE OF THE PRODUCTS PURCHASED BY BUYER FROM SELLER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD OR (2) $500,000 USD, WHETHER ARISING UNDER WARRANTY/GUARANTEE, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, DEFENSE OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER. ALL INSURANCE, BOND AND BANK GUARANTEE OR LETTER OF CREDIT PROCEEDS WHICH MAY BE PAID TO BUYER BY THE INSURERS, SURETIES OR BANKS OF SELLER OR ITS AFFILIATES WILL BE CREDITED AGAINST THE LIMITATION STATED ABOVE AND REDUCE THE AMOUNT OF THE CUMULATIVE LIABILITY OF SELLER AND ITS AFFILIATES. SELLER S PRICE HAS BEEN NEGOTIATED IN CONSIDERATION OF THE ALLOCATION OF RISKS AND ESTABLISHMENT OF LIMITATIONS OF LIABILITY STATED IN THIS CONTRACT, BUT FOR WHICH SELLER WOULD NOT HAVE ENTERED INTO THE CONTRACT.

5 BUYER S REMEDIES ARE LIMITED TO THOSE REMEDIES EXPRESSLY STATED IN THIS CONTRACT; AND, THESE REMEDIES SHALL NOT FAIL THEIR ESSENTIAL PURPOSE BECAUSE BUYER IS LIMITED TO THE EXCLUSIVE REMEDIES AS STATED HEREIN. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Patents. Seller shall indemnify, defend and hold harmless Buyer from and against all claims, suits and actions (collectively Claims ) brought against Buyer, and for any direct damages that arise directly from Claims that the Seller products infringe the intellectual property rights of a third party. Seller shall not be responsible for any infringement to the extent such infringement is the result of (a) use of the Product(s) in combination with any other products not provided by Seller if the infringement would not have occurred but for such combination, (b) any alteration of modification of the Product(s) not undertaken or authorized by Seller if the infringement would not have occurred but for such alteration or modification, (c) Seller s compliance with Buyer s specifications if the infringement would not have occurred but for such compliance, or (d) Buyer s failure to comply with Seller s instructions regarded as necessary to render the Product(s) non-infringing if the infringement would not have occurred if Buyer would have complied with Seller s instructions. Upon a finding of infringement, Seller shall, at its sole discretion, in addition to any indemnification, take one of the following actions: (a) obtain all rights required to permit the manufacture, sale, import, and use of the Seller products, (b) modify or replace the Seller products so that they are no longer infringing, or if (a) and (b) are not commercially reasonable alternatives, (c) refund Buyer s purchase price for any Seller connectors found to be infringing and returned to Seller. Intellectual Property. Seller retains all intellectual property rights, whether registered or unregistered, including trademarks, patents, and copyright of all documents, drawing rights, design rights, developed programs, software, models and other data provided or developed in the course of the Contract. Seller will, if so required by Buyer, grant Buyer a non-exclusive, non-assignable royalty free license to use the same only for the purposes of operating or maintenance of the equipment by Buyer. Changes in Specifications or Drawings. All additional expense to Seller due to changes in specifications or drawings which have been approved by Seller and for any products furnished in addition to that herein specified, shall be added to the purchase price and paid by Buyer.

6 Seller's Right of Possession. Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of Buyer's default or defaults, to withhold shipments, in whole or in part, to stop products in transit and redirect the same, either before or after delivery and to retake into general inventory all products which may be stored with Seller for Buyer's account, without the necessity of taking any other proceedings. Buyer acknowledges and consents that all products so withheld, stopped in transit, or retaken after delivery shall become the absolute property of Seller, provided that Buyer is given full credit therefor. Payment Terms and Revocation of Credit. Invoice payment terms shall be Net 30 days from invoice date unless otherwise agreed upon in writing by Seller and Buyer. Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer's failure to pay for any products when due or for any other reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery. Insurance. Seller shall maintain insurance coverage as required by applicable law. Reservation of Rights. Payment by Buyer of any "partial tooling charge" or other similar expense shall not vest any right or title in Buyer, and Seller shall have unrestricted right and authority to produce, use and/or sell identical machinery or products to others. Export Compliance. Buyer hereby agrees to comply fully with all applicable U.S., E.U. and other National sanctions and export control laws and regulations, including without limitation those regulations maintained by the U.S. Treasury Department s Office of Foreign Assets Control ( OFAC ), Department of State, ITAR Regulations, and the U.S. Commerce Department s, Bureau of Industry and Security. Specifically, Buyer covenants that it shall notdirectly or indirectly sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any product, services, software, source code, or technology (collectively, Products ) received from Seller under this Agreement to any person, entity, or destination, or for any activity or use prohibited by the laws or regulations of the United States without obtaining prior authorization from the competent government authorities, including but not limited to the Dept. of State and/or Dept. of Commerce, as required by those laws and regulations. To the extent required under U.S. law, Buyer further covenants to screen all customers and business partners against all relevant U.S., EU and Canadian Government lists of persons denied export privileges or otherwise subject to trade, export, or financial sanctions, including without limitation the U.S. Treasury Department s OFAC list of SDN, U.S. Department of Commerce BIS Denied Persons List and Entity List, U.S. State Department DPL, The Canadian DPL, and the EU Consolidated List before providing or agreeing to provide any Products to any person.

7 Anti-Bribery and Corruption Laws. Each Party represents and warrants compliance with all applicable U.S. and foreign anti-bribery and corruption laws and regulations including, but not limited to, the U.S. Foreign Corrupt Practices Act ( FCPA ), the U.K. Bribery Act, The OECD Anti-Bribery Convention and the Brazilian Clean Companies Act. Each Party agrees to defend, indemnify, and hold harmless the other Party from any claims, costs, liabilities, penalties, obligations, and damages such other Party may incur, including without limitation reasonable court, attorney and expert fees, and costs, as a result of such Party s breach or violation of this warranty. Governing Law. All questions concerning the validity, operation, interpretation, and construction of this Agreement shall be governed by and determined in accordance with the laws of Delaware, without giving effect to its choice of law provisions. Revision: February 24, 2016