Simcona Terms & Conditions of Sale
1. ACCEPTANCE OF PURCHASE ORDERS
Sales of any goods or any related services (collectively, “Products”) referenced in Customer’s written Purchase Order to Simcona (“Purchase Order”) is expressly conditioned upon the terms and conditions set forth below. Other than as specifically provided in a separate written agreement between Simcona and Customer, any additional or different terms specified or referenced in Customer’s Purchase Order are hereby excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized representative of Simcona. These terms and conditions represent the entire agreement between the Customer and Simcona pertaining to the subject matter of this Purchase Order and shall supersede all prior oral and written agreements, proposals, communications, and documents. No Purchase Order placed by Customer shall be deemed accepted unless or until Simcona issues a written acknowledgement. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of Simcona.
This agreement is non-cancellable for convenience by either party except as follows. The parties hereto may terminate this Agreement, and their respective obligations under such Agreement, as follows: (1) by mutual, written consent of the parties hereto; (2) by Simcona, if Customer fails to pay to Simcona any payments hereunder when due, as contemplated by this Agreement; (3) by any party hereto upon six (6) months written notice if the other party hereto materially breaches any term of the Agreement or otherwise fails to satisfy any promise or covenant made herein or in the Agreement, and further provided that such party shall fail to cure said breach or failure within such period; or (4) by any party hereto upon written notice to the other party hereto if a proceeding is brought by the other party hereto in any court or under supervision of any court-appointed officer under any federal or state bankruptcy, reorganization, rearrangement, insolvency or debt readjustment law, or if any such proceedings are instituted against the other party hereto and it fails to obtain dismissal of such proceeding within sixty (60) days after the same has been instituted
Upon termination or expiration of the Agreement, Customer shall be responsible for all inventory purchased for use in Customer products valued at cost plus 30% and for labor termination at the then standard labor rate including reasonable severance benefits and accrued vacation expenses.
Each of the parties hereto shall immediately cease using all Confidential Information of the other party hereto related to such Service Agreement, unless specifically authorized, in writing by such other party, and shall promptly return to such other party all such information in its possession, and shall not publish or reveal, use, or divulge, directly or indirectly, any of such information unless specifically authorized, in writing, by such other party.
Termination or expiration of the Agreement shall not release any party hereto from any liability which has as of the date of such termination or expiration already accrued to the other party hereto, nor affect in any way the survival of any right, duty, or obligation of either party hereto which is expressly stated elsewhere in such Service Agreement to survive such termination or expiration hereof.
3.1. Modification to these terms may be made only with a written Project Change Notice agreed upon and signed by authorized representatives of Simcona and Customer. Modification may result in changes to price and delivery schedules.
3.2. Customer requested modifications to the order quantity, delivery schedule, and/or product requirements must be submitted in writing on a formal project change notice that clearly specifies the requested changes (a “Project Change Notice”). For changes to the technical design, Customer shall supply an itemized list of changes (from – to) referencing the specific document that contains each change. Changes may require requote of pricing, delivery, and terms as determined by Simcona.
3.3. Changes to delivery schedules, whether requests to expedite delivery, or to delay delivery, submitted by Customer in a written Project Change Notice, may require payment for inventory and other expenses incurred by Simcona up to the date of notification of the delay as determined solely by Simcona.
4. PRICES, TAXES
4.1. The price set for in Simcona’s Quotation (“Price”) are in United States Dollars. Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted Prices, quantities, and/or the scope of Products offered, unless such modification or addition is agreed to in writing by Simcona prior to the Purchase Order.
4.2. The prices are exclusive of any taxes (including, without limitation, sales, use, value added, goods and services, business, property (real or personal, tangible or intangible), license, documentation, registration, import, export, excise, franchise, stamp, or other tax), custom fees or tolls, levy, impost, withholding, fee, duty or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively, “Taxes”). All Taxes shall be paid by Customer in addition to the Price. If any payment by the Customer is subject to withholding tax, the Customer agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount as is necessary to ensure that Simcona receives the same amount it would have received if there had been no withholding. Customer shall deliver any certifications and other documents required to demonstrate eligibility and to benefit from any exemption or other relief from any Tax.
5. PACKAGING, SHIPPING
5.1. Simcona shall pack all Products in accordance with its standard commercial practices. If Customer has any special shipping or handling requirements, Customer shall notify Simcona in a timely manner regarding any such special requirements, and Customer shall be responsible for any increase in cost to pack the Purchase Order.
5.2. The Price does not include any shipping or handling charges, and Customer shall incur both the cost and the risk for bringing the Products to their final destination. Simcona shall notify Customer when the articles are available at Simcona’s facility for pickup and Customer shall be responsible for arranging to have the articles picked up from Simcona’s facility, and for completing any export documentation and clearing the Purchase Order through US Customs. In the event Customer would like for Simcona to deliver the articles to a specified destination, the destination shall be clearly identified in the Purchase Order and Customer shall provide an account number that Simcona can use for the shipping costs.
6. DELIVERY, TITLE, AND RISK OF LOSS
6.1. Simcona’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. Simcona shall have no liability for delay or any damages or losses sustained by Customer as a result of such estimate not being met. Partial deliveries shall be permitted.
6.2. Unless otherwise agreed to by Simcona in writing, delivery shall be deemed to have occurred FOB origin (Incoterms 2010) for all shipments.
6.3. Title and liability for loss or damage to the Products shall transfer from Simcona to Customer upon delivery of the Products at FOB origin.
Customer shall pay for all Products, including deposits that are due with the purchase order and for product delivered or date services performed within 30 days from the date of Simcona’s invoice. Payment shall be deemed to have been made when a check is received by Simcona or payment is received by an electronic transfer in Simcona’s bank account. Simcona reserves the right to assess interest on any late payments from the date due until receipt of payment in full at the lesser of (a) one and one-half percent per month compounded monthly, or (b) the maximum rate permitted by law, and to charge Customer for any collection or litigation expenses, including reasonable attorney’s fees incurred by Simcona in the collection of late payment. In addition to any remedies under law, Simcona may at its sole discretion suspend future deliveries or services until all delinquent payments due are received. Simcona may require an advance payment or milestone payments prior to beginning performance of the Purchase Order. Simcona may require Customer to obtain a letter of credit for international orders. All payments hereunder shall be paid without any deductions, set-off, or counter-claims including for any Taxes.
8. FORCE MAJEURE AND EXCUSABLE DELAY
Simcona shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to: (a) Customer, including omissions or failure to act on the part of Customer or its agents or employees; (b) An Event of Force Majeure, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization;(c) Causes beyond Simcona’s reasonable control, including severe accidents at Simcona’s plant, unforeseen production or engineering delays or inability of Simcona or its vendors to secure adequate materials, manufacturing facilities or labor, or any other acts and causes not within the control of Simcona, which by the exercise of due diligence and reasonable effort, Simcona would not have been able to foresee, avoid or overcome.
Simcona warrants that the Products manufactured by Simcona shall be free from defects in workmanship upon receipt and for thirty (30) days from shipment for Products. Simcona’s obligation and Customer’s sole remedy under the Warranty shall be limited to, at Simcona’s option, the repair or replacement of the nonconforming warranted Product, or any part thereof, FOB origin (for removal of doubt, return to factory). Notwithstanding the foregoing, the Warranty shall not apply to components, materials and functionality, deficiencies in the product design, an Event of Force Majeure, wear and tear, or to defects arising from or connected with Customer’s or any third party’s (i) improper receipt, transport, handling, storage, maintenance, testing, installation, operation or of the Product, or (ii) alteration, modification, maintenance, overhaul, repair, neglect or foreign object damage of the Product. Simcona shall have no obligation to Customer for any failure, to the extent that it is aggravated by such continued use. The Warranty does not apply to components or materials. Customer shall provide prompt written notice of the Product’s failure within the Warranty period, and ensure the failed Product is properly packed and returned to Simcona transportation and insurance prepaid.
Warranties. SIMCONA MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED REGARDING THE FUNCTIONALITY OF ANY PRODUCTS OR SERVICES PROVIDED BY IT. EXCEPT AS EXPRESSLY STATED IN ANY AGREEMENT, SIMCONA DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
10. PROPRIETARY INFORMATION
For the term of Customer’s Purchase Order, Simcona and Customer, to the extent of their right to do so, may exchange proprietary and/or confidential information not generally known to the public (“Proprietary Information”), only to the extent and as reasonably required to perform its obligation hereunder. Any document marked “Confidential” or “Proprietary” and all copies made of any such document shall be returned by the receiving party (“Recipient”) of Proprietary Information to the disclosing party (“Owner”) upon completion of the purpose for which they were provided, or destroyed by Recipient at Owner’s direction. Neither Simcona nor Customer shall be liable for any disclosure if the data: (a) is generally available to the public (or becomes so) without breach of by Recipient; (b) was available to Recipient on a non-confidential basis from a source that had
11. GOVERNING LAW
These Terms and Conditions and any action related hereto shall be governed, controlled, interpreted and defined by and under the laws of the State of New York, County of Monroe, USA, without regard to the conflict of laws provisions thereof.
In the event of any dispute arising out of or in connection with these Terms and Conditions, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The place of arbitration shall be State of New York, County of Monroe, USA. The language of the arbitration shall be English. The arbitral award shall be final and binding upon the Parties.
13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE (ACTIVE OR PASSIVE) OR OTHERWISE, SIMCONA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQEUENTIAL DAMAGES OF ANY KIND, AND SHALL NOT BE LIABLE TO CUSTOMER FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. EXCLUDING GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SIMCONA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A PURCHASE ORDER SHALL IN NO EVENT EXCEED ACTUAL, DIRECT, AND PROVEN DAMAGES OF THE PRICE OF THE PRODUCT DIRECTLY PURCHASER BY CUSTOMER UNDER THE PURCHASE ORDER GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. TO THE EXTENT THESE TERMS AND CONDITIONS CONTAIN ANY SPECIFIC REMEDIES PROVIDED BY SIMCONA TO CUSTOMER, REGARDLESS OF FORM, SUCH REMEDIES SHALL BE PROVIDED BY SIMCONA ON A SOLE AND EXCLUSIVE BASIS AND IN LIEU OF ANY OTHER REMEDIES, DAMAGES, OR LOSSES.
Simcona and Customer shall each carry insurance coverage in types and amounts adequate to protect against any losses, damages, liabilities or expenses that may reasonable be expected to be incurred under a Purchase Order, and both shall keep such insurance coverage in effect until the conclusion of the Purchase Order.
Any modification of these Terms and Conditions shall be valid only if it is in writing and signed by the authorized representatives of both Simcona and Customer.
Neither Party may assign or delegate a Purchase Order or any of its rights, duties or obligations regarding a Purchase Order to any other party without the prior written consent of the other party. Any attempt by either party to assign or delegate any of its rights, duties or obligations regarding a Purchase Order without such consent shall be void and of no effect. Notwithstanding the foregoing, Simcona shall be permitted to subcontract its rights, duties or obligations regarding a Purchase Order to another division, affiliate or wholly-owned subsidiary of Simcona and shall have the right to assign a Purchase Order to any successor by way of merger or consolidation or the acquisition of substantially all of the entire assets of Simcona relating to the subject matter of the Purchase Order; provided, however, that such successor shall assume all of the obligations of Simcona under the Purchase Order. Nothing in this provision is intended to preclude Simcona from awarding routine subcontracts or purchase orders to vendors.
Notwithstanding anything set forth herein to the contrary, Customer shall not be allowed or have the right to audit or examine Simcona’s books and records.
18. NO THIRD PARTY BENEFICIARIES
Except as expressly provided herein, these Terms and Conditions are for the sole and exclusive benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
If either party, at its option, agrees to waive any of these Terms and Conditions, then such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or of any other of these Terms and Conditions; nor shall such a waiver be deemed as a course of conduct.
If any of these Terms and Conditions are at any time held to be invalid or unenforceable, then such term or condition shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of these Terms and Conditions, which shall remain in full force and effect.
21. PUBLIC DISCLOSURE
Except as required to obtain necessary licenses or governmental approvals, neither party shall issue any news releases, artic les, brochures, advertisements, or other information releases relating to the subject matter of a Purchase Order, except as otherwise required by law, without the prior written approval of the other party.