These terms and conditions govern the sale of products ("Products") and the provision of services ("Services") by Ascom Electronic Poland Sp. z o.o. and its subsidiaries in Europe ("Seller"). These terms and conditions ("Conditions") take precedence over Buyer’s terms and conditions including any supplemental or conflicting terms and conditions to which notice of objection is hereby given. Acceptance by Buyer is limited to these terms and conditions. Neither Seller’s commencement of performance nor delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of delivery of the Products and/or Services from Seller shall be deemed to constitute acceptance of these Conditions.
1. Orders: All orders placed by Buyer are subject to written acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s prior written consent. Buyer is responsible for the accuracy of its order and any Buyer’s specification and for supplying any relevant information within sufficient time to enable Seller to perform the contract for delivery of Products/Services. Seller may in its sole discretion allocate Product to its Customers. Seller may designate certain Products as NCNR (non-cancelable, non-returnable) or C/S (Customer specific) and the sale of such Products shall be subject to the special terms and conditions contained in Seller’s Special Product Agreement, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. Seller reserves the right to make changes to the specifications of any Product and/or Services supplied which are required to conform with any applicable safety, statutory or EC requirements or, where Product is to be supplied to Product’s specification, which do not materially affect the quality or performance, or resulting from any change in manufacturer’s product specification.
2. Prices: (a) The prices of the Products are those specified in Seller’s invoice for the relevant Product. Pricing for undelivered Product may be increased in the event of any increase in Seller’s costs, change in market conditions or any other causes beyond Seller’s reasonable control. Quotations, unless otherwise stated, are valid on day of issue only; thereafter Seller may change them without notice. (b) Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to Value Added Tax. Buyer agrees to pay these taxes unless the Seller agrees in writing that the sale is exempted. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
3. Payment: (a) Seller’s standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. Seller may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Buyer agrees to pay Seller’s invoice in full without any deductions or set-off. (b) Time for payment of invoices is of the essence. All late payments shall be charged interest computed on a daily basis from the due date until paid in full. Seller is entitled to receive interest at the rate of one percent (1 %) per month or the maximum rate permitted by the Late Payment of Commercial Debts (Interest) Act 1998 as Seller may deem appropriate plus reimbursement for costs of debt collection (including reasonable legal fees of Seller and court costs) to collect full payment for Products/Services supplied. (c) Transportation charges from Seller’s facility to Buyer’s facility shall be paid by Buyer to Seller, in addition to the purchase price of the Product, unless otherwise agreed to in writing by Seller. Seller will select the carrier in the absence of specific instructions by Buyer. (d) Seller reserves the right to establish or change credit or payment terms when, in Seller’s sole opinion, Buyer’s financial condition or payment record warrants it. If payment is late Seller shall not be obliged to continue performance and or to carry out any further work under the contract for delivery of the Products/Services or on any other contract with the Buyer; and if any of the Buyer’s obligations to the Seller are not fulfilled or Buyer fails to pay for Products/Services supplied, Seller may, without prejudice to other remedies available, cancel, suspend or terminate the contract for the relevant Products/Services.
4. Delivery: Unless otherwise agreed in writing by Seller all deliveries will be made EXW (Ex Works) Seller’s facility (as defined in Incoterms 2000). Delivery will be deemed complete and risk of loss or damage to the Products will pass to Buyer upon delivery to the carrier. Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to events beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty. Time for delivery shall not be of the essence. If the Products perish while in the custody of the carrier, the Seller shall be deemed to have performed its obligations in full. Where the Products and/or Services are to be delivered in instalments each delivery shall constitute a separate contract and failure by Seller to deliver any one or more instalments under these Conditions or any claim by Buyer in respect of any instalment shall not entitle Buyer to refuse future deliveries. Title in the Product shall not pass to Buyer until such time as full payment for the Product has been received by Seller and until such time, Buyer shall hold the Product as Seller’s fiduciary agent or trustee and bailee, and shall keep the Product separate to Buyer’s goods and to those of third parties and properly stored, protected, insured and identified as Seller’s property, but shall be entitled to resell or use the Product in the ordinary course of Seller’s business. Until title in the Product passes to Buyer, Seller can require Buyer to return the Products and, if Buyer fails to do so, immediately on request, Seller may enter Buyer’s premises to repossess them. Buyer shall indemnify Seller against liability for damage caused in repossessing Products. Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Products which remain Seller’s property, but if Buyer does so, all moneys owing by Buyer to Seller shall forthwith become due and payable. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to transfer, create, perfect, preserve, protect and enforce the provisions of this Clause 4.
5. Acceptance/Returns: Shipments will be deemed to have been accepted by Buyer upon receipt of the said shipments at Buyer’s facility. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in any event within seven days of delivery. Any discrepancy in shipment quantity must be reported to the Seller within seven (7) days of receipt of the Products. In the event of an over-shipment, Buyer shall have the option to return the Products to Seller at Seller’s expense or alternatively, Buyer may elect to retain the excess Product (subject to adjustment of the invoice price to account for excess items.) Any Product returns shall be subject to compliance with Seller’s Return Merchandise Authorization policies and procedures as well as applicable restocking charges. Buyer may obtain details of these from Seller on request. Returned Products must be in the original packaging and conform with minimum package quantity requirements.
6. Warranty and Limitation of Liability:(a) Seller will transfer to Buyer any transferable warranties or indemnities that the manufacturer of the Product or the third party vendor/service provider provides to Seller. SELLER SHALL HAVE NO LIABILITY TOWARDS BUYER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER PRODUCT WARRANTIES. SELLER ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDORS/SERVICE PROVIDERS. IT IS BUYER'S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES. (b) Seller’s exclusive obligations with respect to a non-conforming Product or Service shall be, at Seller’s option, to repair or replace the Product, if it is determined to be defective, or to re-perform the Service, or to refund to Buyer the purchase price paid for the Product or Service pursuant to the terms of the warranty provided by the manufacturer of the Product or the third party vendor/service provider. Notwithstanding anything herein to the contrary, the liability of Seller under this Section 6(b) for all claims shall not exceed the sum of Buyer’s payments for the Products or Services which are the subject of the dispute and the foregoing is Buyer’s sole and exclusive remedy for all claims under this Section 6(b). THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. (c) Replacement Products shall be warranted as set forth in Section 6(a) above. Any Products repaired or serviced by Seller shall be warranted as provided in this Section 6 for the remainder of the manufacturer’s warranty period. (d) No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards.
(e) Seller disclaims, and shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, which may occur, as a result of the sale of Products to Buyer. The only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, shall be against the manufacturer of the Products which is explicitly subject to the limited warranty of the manufacturer of the Product. There shall be no remedy or recourse against Seller or the manufacturer to the extent the infringement arises from or is otherwise based upon (i) the manufacturer's compliance with the particular requirements of Buyer that differ from the manufacturer's standard specifications for the Product; (ii) modifications or alterations of the product other than by the manufacturer; or (iii) a combination of the Product with other items not furnished or manufactured by the manufacturer. (f) BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, BUYER AGREES THAT SELLER’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
(g) Buyer acknowledges that this Agreement was entered into at arm’s length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.
7. Intellectual Property - 7. Export Control/Use of Products: Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer agrees that the Products are subject to the export and/or import control laws and regulations of various countries (and in particular are/maybe subject to the export control regulations of the UK and/or the USA, as amended) and agrees that the Products/Services will not be used for purposes associated with any chemical, biological, nuclear weapons or missiles capable of delivering such weapons, or in support of any terrorist activity or any other military use, nor will they be re-sold if it is known or suspected that they are intended to be used for such purposes. Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Products and/or Services into the country of destination and for the payment of any duties thereon. Buyer further agrees to comply strictly with all UK and US export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. In the ordinary course of the Seller’s business, the Seller distributes Products which it purchases from the manufacturer thereof and Seller makes no alterations whatsoever before sale to the Buyer. In so far as it is practicable the Seller maintains the integrity of and sells the Products in the manufacturer’s packaging. Buyer agrees that in all cases, the Buyer has knowledge of the origin of the Products and all Buyers orders are placed in that knowledge and at the specific request of the Buyer. In selecting and ordering the Products, Buyer agrees that it is using its own skill and judgement. Buyer agrees that Products sold by Seller are not designed by the manufacturer for use in life support, life sustaining or nuclear applications or in devices or items intended for surgical implant into the body, or other applications or products for which a product failure may result in personal injury, death, or catastrophic property damage. If Buyer sells or otherwise uses the Products for such applications, or breaches its obligations relating to export restrictions, product use or mis-uses the Products in the manner referred to in clause 6(f) above, the Buyer agrees that it does so completely at its own risk and irrevocably undertakes to indemnify Seller and its suppliers/manufacturers for any damages resulting from such sale or use or mis-use, including Seller’s reasonable legal fees and expenses.
8. Technical Assistance or Advice: Any technical assistance or advice offered by Seller regarding use of any Product or Service or provided in connection with Buyer’s purchases is given free of charge and as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied. Seller’s employees or agents are not authorized to make any representations regarding any Products or Services unless confirmed by Seller in writing and signed by a Director of Seller. Buyer acknowledges that it does not rely on any such representations that are not so confirmed. Any typographical or other error or omission in any sales literature, pricing, invoice or quote is subject to correction without any liability on the Seller’s part.
9. Choice of Law: This Agreement shall be governed by English law. The parties agree to submit to the exclusive jurisdiction of the English courts save that the Seller may commence proceedings in the courts of the Buyer’s domicile.
10. Force Majeure: Seller shall not be liable for its inability to secure sufficient quantities of any Products or failure to perform or to deliver Products or Services due to causes beyond Seller’s reasonable control including, but not limited to, Acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, or shortage of Product, which shall be considered as circumstances of force majeure excusing Seller from performance and barring remedies for non-performance. If force majeure circumstances occur, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure circumstances without subjecting Seller to any liability or penalty. Seller may, at its option, suspend performance, cancel, terminate or vary the terms of the contract for the relevant Products/Services, without any liability or penalty, by giving notice to Buyer.
11. Non-Waiver: No course of dealing or failure of either party to strictly enforce any Condition or term, right or condition of the parties’ contract shall be construed as a waiver of that term, right or condition nor shall Seller’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.
12. Confidentiality & Software licence: Buyer should not contact any of Seller’s clients or suppliers relating to Products or Services bought from Seller, unless otherwise agreed and must keep confidential and not disclose to any third party, the terms of the parties’ contract. Nothing herein shall be construed to grant any rights or licence to use any software (if applicable) or other intellectual property in or relating to the Products in any manner or for any purpose not expressly stated in a licence agreement signed by the Seller.
13. Insolvency: This clause applies if: (a) Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or (b) an encumbrancer takes possession, or a administrator or administrative receiver is appointed, of any of Buyer’s property or assets; or (c) Buyer ceases, or threatens to cease, to carry on business; or (d) Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly. If this clause applies then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to terminate the Agreement or suspend any further deliveries without any liability to Buyer, and if the Products and/or Services have been delivered but not paid for, the price shall become immediately due and payable by the Buyer notwithstanding any contrary agreement.
14. Entire Agreement: These Conditions and the price, quantity and Product details in the Seller’s invoice for the relevant Products/Services shall constitute the entire agreement between the parties with respect to the supply of such Products or Services; and may not be rescinded or terminated by Buyer unless provided herein. The provisions of the entire agreement supersede all prior oral and written quotations, agreements, and understandings of the parties with respect to the subject matter thereof. Seller may amend to these Conditions by giving notice in writing to the Buyer. If any provision of these Conditions is held to be invalid or unenforceable by any court having competent jurisdiction, this shall be treated as severable, and it shall not affect the validity and enforceability of the remaining Conditions, which shall remain in full force and effect. The Buyer shall not assign or transfer any of Buyer’s rights or obligations under the contract between Buyer and Seller unless otherwise agreed by Seller in writing.