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 “Purchaser” means the organisation or person who purchases goods and services from the Supplier;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
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 ASE Optics Europe, a company registered in C. Jordi Girona 1-3. 0803 Barcelona, Spain with Legal Name Twoptics Systems Design, S.L. and VAT Registration number: B65572810; with operational facilities headquarters located in C. Jordi Girona 1-3. 0803 Barcelona, Spain.
Purchaser 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 Purchaser’s assent to the terms and conditions set forth herein. Supplier expressly objects to any additional, different, or inconsistent terms previously submitted by Purchaser, whether in a purchase order or otherwise, and to the extent there are any differences between this order and that submitted by Purchaser, this order will be construed as a counteroffer and not an acceptance of Purchaser’s terms. Purchaser’s failure to make written objection within five (5) days from receipt hereof, or its acceptance of the shipment of the products or the performance of the services, shall constitute its acceptance of these term end conditions.
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Supplier to the Purchaser.
2.2 Before the commencement of the services the Supplier shall submit to the Purchaser a Specification Document which shall specify the goods and services to be supplied and the price payable. The Purchaser shall notify the Supplier immediately if the Purchaser does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
2.3 The Supplier shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
3.1 The price for the supply of goods and services are as set out in the Specification Document. The Supplier shall invoice the Purchaser for reasonable out of- pocket expenses incurred in providing those services.
3.2 Purchaser 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 services contract between Supplier and Purchaser. In the event that the Purchaser’s procedures require that an invoice be submitted against a purchase order to payment, the Purchaser shall be responsible for issuing such 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 Purchaser, except where Purchaser shall have provided a proper certificate of exemption therefrom. Purchaser shall be responsible for the payment of such taxes and fees even if not added to the invoice price.
3.5 Unless otherwise agreed to by Supplier, any Product ordered shall be paid for within thirty (30) days from the date of shipment or as agreed in the services contract between Supplier and Purchaser. All prices and charges are denominated and shall be paid in EURO currency or as agreed in the services contract.
3.6 Delinquent payments after 30 days can be subject to late fees or penalties. Supplier reserves the right at any time to alter or suspend credit or to change any credit terms when, in its sole discretion, the financial condition of Purchaser no warrants. In any such case, Supplier may require cash payment, irrevocable letter of credit or additional security from Purchaser before 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 the bankruptcy or insolvency of Purchaser or in the event any proceeding is brought by or against Purchaser under the bankruptcy or insolvency laws, Supplier may be entitled to cancel any order then outstanding, without liability whatsoever, and shall receive reimbursement for its cancellation charges as per Section 4 hereof.
All goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Supplier and no representation written or oral, correspondence or statement shall form part of the contract.
5.1 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods.
5.2 Supplier will determine the shipping schedule after it receives all items and information necessary for the design, manufacture, and testing of the Products.
5.3 All risk in the goods shall pass to the Purchaser upon delivery.
5.4 All shipment release schedules requested by Purchaser for blanket purchase orders must be submitted in writing to Supplier. Supplier will use its commercially reasonable efforts to meet the requested shipment schedule and will acknowledge the actual schedule in writing within ten (10) days of receipt of the shipment schedule request.
5.5 In the event that a method of shipment other than set forth in Section 3 (3.2) hereof is specified, the price shall be adjusted to reflect any increase or decrease to the extent that the cost of shipment is or will be included therein. Passage of title and/or risk of loss shall not be affected by delivery terms, shipping instructions, or storage on Purchaser’s behalf by Supplier at its facilities. Upon written notice to Purchaser, Supplier may elect to obtain insurance covering the Products during shipping, and Purchaser shall promptly reimburse Supplier the cost thereof.
6.1 Once accepted by Supplier, this order may be cancelled only upon the written consent Supplier. If Supplier consents to such cancellation, Purchaser shall pay to Supplier, within thirty (30) days of being notified, cancellation fees and charges determined by Supplier in accordance with the following;
6.2 Should Supplier incur additional costs because of the inability of Purchaser to accept delivery of the Products or to permit normal and unrestricted installation of goods, when such installation is required, Purchaser promptly upon demand shall reimburse such additional cost to Supplier.
6.3 Once scheduled or released for shipment, Products shall not be unscheduled or reclassified as unreleased. All Products must be released by the Purchaser to allow shipment by the contract’s end date. Those Product units not released as described will be considered cancelled and the terms of this Section shall apply.
Purchaser will fully inspect all standard and/or custom Products delivered within 30 days of receipt. In the event that such inspection and testing reveals any deficiency or nonconformity, Purchaser shall notify Supplier in writing as per Section 8.WARRANTY. If Purchaser fails to make any claim within such time, 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 of 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 as per Section 8. Returns for convenience of custom or customized Products are not allowed. In all cases, no Product shall be returned to Supplier by Purchaser unless a Return Authorization Number is first requested in writing and Supplier authorizes such return.
8.1 Supplier warrants its Products to be free from defects in materials and workmanship and to conform to Supplier’s standards or agreed upon specifications, whichever ore applicable for such Products, for a period of one (1) year after shipment by it or as authorized reseller, provided that Purchaser notifies Supplier in writing of any such defects within thirty (30) days of first evidence of such defect The sole end exclusive obligation of Supplier under this warranty is limited, at Supplier’s sole discretion, to the replacement or reworking of the defective Products or the return of that portion of the purchase price applicable to the defective Products. The determination of whether a non-conformity is a valid warranty claim is at Supplier’s sole discretion.
8.2 This warranty is not applicable to Products damaged by, or failures due to; abuse, misuse; alteration; accident; negligence (other than that of Supplier); improper storage, maintenance or operations; abnormal conditions of temperature, moisture, dirt, or corrosion; or repair or alteration by anyone other than an authorized representative of Supplier. Supplier is not responsible for expenses incurred by Purchaser to correct or repair any alleged defect unless pre-approved by Supplier in writing. This warranty does not apply to; and Supplier assumes no liability for, the failure of any Products to meet Purchaser provided specifications where Supplier previously indicated its products may not meet purchaser’s specifications.
8.3 Purchaser must inspect product within 30 days of receipt. Purchaser 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 by an appropriate shipment carton. Purchaser is responsible for risk of loss and all costs associated with the return to Supplier of the Product. Purchaser is also responsible for any return shipping charges and for the price of labour associated with the diagnosis and retesting of Products found to be conforming. Products found to be non-conforming (valid warranty claims) will be returned prepaid.
8.4 Supplier’s warranty does not extend to materials or equipment purchased by it from other manufacturers end resold (either in its original form or as a component of the Products) to Purchaser and Supplier assigns to Purchaser any transferable rights it may have arising from warranties given by any such manufacturer with respect to such materials or equipment.
The sole and exclusive remedies of Purchaser 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 shell not in the aggregate exceed the purchase price of the Products involved. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEOUENTIAL DAMAGES. THE FOREGOING CONSTITUTES THE SOLE LIABILITY OF SUPPLIER AND THE EXCLUSIVE REMEDY OF PURCHASER WHETHER OR NOT BASED UPON NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, TORT, OR ANY OTHER COURSE OF ACTION.
Purchaser acknowledges that Supplier has no control over, and is not responsible for, the manner in which the Products will be used or otherwise dealt with by Purchaser. Purchaser shell indemnify, hold Supplier harmless from end against, and agrees to assume all responsibility for any and all actions, claims, or demands arising out of or in any way connected with, and any end all amounts which Supplier and/or Purchaser becomes obligated to pay, caused by or resulting directly or indirectly from the use or operation of the Products.
The parties shall enter into Supplier’s standard Non- Disclosure Agreement, unless an alternate agreement is mutually agreed upon, to set forth the terms and conditions applicable to confidential information.
12.1 Supplier shall have the right to immediately suspend performance by it or otherwise terminate all or any part of this order in the event Purchaser fails to pay any amount to Supplier when due.
12.2 In the event of nonpayment, Supplier shall have and may exercise all rights and remedies under the Uniform Commercial Code. Purchaser shall also be liable to Supplier for all costs of collection, including reasonable attorney’s fees and costs, incurred by Supplier upon the default by Purchaser.
Supplier shall not be held responsible for failure of or delay in delivery nor Purchaser for failure or delay in accepting material hereunder if such failure or delay is due to act of God or the public enemy, war, governmental acts or regulations, fire, flood, embargo, quarantine, epidemic, labour strikes, accident, unusually severe weather, or other cause, either similar or dissimilar to the foregoing, beyond its control. In the event of failure of or delay in delivery or acceptance for any such cause the quantity provided for in the order may be reduced accordingly by written notice by either party to the other.
The terms and conditions of this acceptance constitute the only terms which shall govern this Purchaser order. No other agreement or quotation or any acknowledgement of Purchaser in any way modifying any of the provisions of the Purchaser order will be binding upon Supplier unless made in writing and accepted in writing by Supplier. This order shall be governed by and construed in accordance with the laws of Spain and European Union, without regard to the conflicts of law principles thereof.
Tooling fabricated under exclusive NRE development is designed explicitly for Supplier fabrication methods. These methods are considered proprietary to Supplier and tooling must kept under control and in facility at Supplier. Purchaser paid exclusive tooling is proprietary to the Purchaser and will only be used for Purchaser unless approval is given to Supplier.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
18.1 The Supplier makes every effort to ensure that support and advice given to the Purchaser is accurate and appropriate. However, any advice, suggestion or recommendation offered by the Supplier, whether as part of the Specification Document, other written document or given verbally, cannot be guaranteed as accurate or appropriate.
18.2 The Supplier does not guarantee any level of support, response time or availability, unless detailed within the Specification Document, a separate support contract or service level agreement which has been agreed by both the Purchaser and the Supplier.
Twoptics Systems Design SL
ASE Optics Europe
Barcelona, 1st January 2016