Pulse (“Seller”) TERMS AND CONDITIONS OF SALE

Pulse (“Seller”)

TERMS AND CONDITIONS OF SALE

 

CUSTOMER’S TERMS AND CONDITIONS

Products and services furnished by Seller are sold only on the terms and conditions stated herein, notwithstanding any different or additional terms or conditions stated on Customer’s purchase order or other documents, which are expressly rejected hereby by Seller. Seller’s performance of any contract is expressly made conditional on Customer’s agreement to the terms and conditions stated herein unless otherwise specifically agreed to in writing by Seller. In the absence of such agreement, commencement of performance and/or delivery shall be deemed to be for Customer’s convenience only and shall not be deemed or construed to be acceptance of Customer’s terms and conditions or any of them. Further, customer’s acceptance of any product or service shall be deemed acceptance of the terms and conditions stated herein. The sale of products delivered by Seller in North America, Asia and Europe shall be governed by the laws of the State of Delaware (U.S.A.), Singapore and England, respectively, notwithstanding any conflict of laws principles. The United Nations Conventions on Contracts for the International Sale of Goods shall not apply.

PRICES

All prices are subject to the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face hereof. In the case of a conflict between the terms and conditions stated herein and those appearing on the face hereof, the latter shall control.

Seller’s prices are subject to change without notice. Unless otherwise stated in writing by Seller, all prices shall be exclusive of transportation, insurance, taxes (including, without limitation, any sales, use, value added, excise or similar tax, and any tax levied on or assessed to Seller after product delivery by reason of Seller’s retention of title as provided herein) license fees, customs fees, duties, premiums, fees and other charges. Any such taxes, fees and charges will at Seller’s option be added to the price, paid directly by the Customer or reimbursed by customer if paid by Seller.

Prices are for products only and do not include equipment, tools, dies, technical data, proprietary rights of any kind, patent rights, qualification tests, environmental tests or other tests (except Seller’s standard tests) or packaging (other than Seller’s standard packaging), unless expressly agreed to in writing by Seller.

Prices are for a specified print and revision, or if not so stated, the applicable Seller’s part number and current revision shall govern. Any changes in specified customer print shall require requotation for price and delivery.

TERMS OF PAYMENT

Unless credit is specifically granted in writing by Seller, payment in full is due upon delivery. All payments for products released and shipped on approved credit accounts shall be due in full and in legal tender of the United States (unless otherwise indicated by Seller on the invoice) thirty (30) days from the date of invoice. Payment of each of Seller’s invoices, whether or not such invoice covers Customer’s entire order shall be made in accordance with the terms of the invoice. If Customer fails to perform the terms of payment of any invoice or if the financial condition of Customer shall become impaired or unsatisfactory to Seller, or if necessitated by any act, or requirement of any governmental authority, Seller in its sole discretion, reserves the right to change the terms of payment, require payment in advance or security or a guaranty satisfactory to Seller and/or defer or discontinue further shipments without prejudice to any other lawful remedy available to Seller. Seller also reserves the right in the case of any of the foregoing events to cancel all of Customer’s orders, in which event Customer shall fully compensate Seller for any commitments, obligations, expenditures, expenses and costs that Seller may have incurred in connection with the orders (e.g., conversion charges, restocking charges). Unless otherwise specified on the face hereof, Seller shall have the right to make partial shipments. Each partial shipment shall be deemed a separate sale and payment shall become due therefore, in accordance with the terms of payment of the related invoice. A delinquency charge of 1-1/2% interest per month overdue will be charged on past due accounts but in no event will the delinquency charge be greater than the maximum rate permitted by law. Customer shall pay all fees and expenses (including attorneys’ fees) incurred by Seller in the enforcement of Seller’s rights hereunder. Title for financial security purposes shall remain with Seller until Customer has made payment in full in accordance with the terms hereof. Customer shall defend, indemnify and hold Seller harmless from any and all liability, claims, losses, damages, costs and expenses (including reasonable attorney’s fees and costs) arising from Customer’s breach of these terms and conditions of sale.

TRANSPORTATION AND RISK OF LOSS

Transportation will normally be in accordance with Customer’s shipping instructions, but Seller reserves the right to ship products freight collect and to select the means of transportation and routing. Unless otherwise advised, Seller may insure the full value of the products or declare full value thereof to the transportation company at the time of delivery and all freight and insurance costs shall be for Customer’s account. Risk of loss or damage shall pass to Customer upon delivery of the products to the transportation company at the EXW (Ex Works) point. Confiscation or destruction of, or damage to products shall not release, reduce or in any way affect the liability of Customer to make payment therefor. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss or damage shall remain in Customer until the products are returned at Customer’s expense to such place as Seller may designate in writing. Customer, at its expense, shall fully insure products against all loss or damage until Seller has been paid in full thereof, or the products have been returned to Seller. All products must be inspected upon receipt and claims must immediately be filed with the transportation company and Seller when there is evidence of shipping damage, either concealed or external. Unless otherwise specified by Seller in writing as used in the clauses appearing herein or attached hereto, “delivery” shall occur when the product is delivered at the EXW (Ex Works) point, which shall be the point of manufacture. Customer is responsible for compliance with applicable export laws and obtaining the appropriate export licenses when reselling the products.

PERFORMANCE

Delivery and shipment dates are estimates only, and Seller does not guarantee delivery or shipment on or by such dates. Seller will make reasonable efforts to observe its dates indicated for delivery or other performance. However, Seller shall not be liable in any way because of any delay in performance hereunder due to unforeseen circumstances or to causes, beyond its control, including, without limitation, strike, lockout, embargo, riot, war, act of terrorism, fire, act of God, accident, failure or breakdown of components necessary to order completion, subcontractor, supplier or Customer caused delays, inability to obtain labor, materials or manufacturing facilities, or compliance with any law, regulation or order. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution. When such circumstances or causes have been remedied, Seller will make and Customer shall accept performance hereunder. Seller reserves the right, in its sole discretion, to determine manufacturing location, allocate inventories and current productions and substitute suitable materials, when, in its opinion, such allocation or substitution is necessary or legally required due to such circumstances or causes. As used herein, “performance” shall include, without limitation, fabrication, assembly, shipment, delivery, testing and warranty repair or replacement as applicable.

ACCEPTANCE

Seller reserves the right and Customer agrees that the Seller has the right to ship orders complete with yield quantities and/or first level packaging limitations plus or minus five percent (5%). Justified reject parts within yield quality limits shall be credited to Customer’s account and shall not be replaced unless reordered. Each product furnished by Seller shall be deemed accepted by Customer unless written notice of defect or nonconformity is received by Seller within ten (10) days of delivery thereof. Notwithstanding the foregoing, use of any such product by Customer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of the product by Customer. All products accepted shall be paid for regardless of any claim relating to other deliveries or undelivered products.

CANCELLATION, SUSPENSION OR MODIFICATIONS BY CUSTOMER

Customer’s order as indicated on the face hereof can be cancelled, suspended or modified only with Seller’s prior written consent.

PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS

Engineering, consulting or development services provided by Seller to customer (“Development Services”) that result in any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how or other intellectual property shall be the sole property of Seller. Seller will defend Customer and pay any settlement amount or judgment resulting from any claim that the design or manufacture of any product in Seller’s commercial line of products or manufactured to specifications set by Seller and furnished hereunder constitutes an infringement of any United States patents; provided that (a) Seller is notified promptly in writing of such claim of infringement and is given full authority, information and assistance in settling and defending such claim and (b) Seller shall have no liability whatsoever with respect to (i) any claims settled by Customer without Seller’s prior written consent, (ii) any modification of products, or (iii) any use or combination of products with products not furnished by Seller. In the event of such a claim, Seller will, in its sole discretion and at its own expense, either procure for Customer the right to continue using said product, replace it with a non-infringing product, or remove it and refund the selling price thereof. THIS SHALL CONSTITUTE SELLER’S ENTIRE LIABILITY RELATING TO ANY CLAIM BASED UPON OR RELATED TO ANY ALLEGED INFRINGEMENT OF ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS. Customer shall defend and hold Seller harmless against any expense, loss, costs or damages resulting from any claim of infringement of patents, trademarks or other intellectual property rights arising out of compliance by Seller with Customer’s designs, specifications, or instructions and any or all of the matters described above in subsections (a) or (b).

QUALITY ASSURANCE

Quality assurance provisions applicable to the product(s) specified herein shall be in accordance with Seller’s standard practices and procedures unless otherwise specified by mutual written agreement.

TITLE TO EQUIPMENT AND TOOLING

Any equipment (including jigs, dies, tools, molds or fixtures, referred to in any order) which Seller constructs or acquires for use in production of goods ordered hereunder, shall be and remain Seller’s property and in Seller’s sole possession and control. Any charges made by Seller therefore, shall be only for the use of such equipment and shall confer on Customer no rights of any kind with respect to such equipment.

SET OFF

Seller shall have the right at any time and without notice, to set off any liability or obligation of Customer to Seller against any liability or obligation of Seller to Customer.

LIMITED WARRANTY

Seller warrants for a period of one (1) year from the date of purchase, only to the original purchaser, that each product delivered shall be free from defects in material or workmanship at time of shipment, and that each product delivered will meet the published specifications for that product or any specifications agreed by Seller in writing. This warranty does not extend to any of the Company’s products which have been subject to misuse, adverse conditions, abuse, neglect, or accident, or which have been installed in the circuit or application, which has been altered or repaired outside of Seller’s factory, or which has not been used strictly in accordance with all manuals and instructions. OTHER THAN THE WARRANTIES SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AS TO THE CONDITION, DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF THE PRODUCTS, OR AS TO ANY OTHER MATTER, AND THE WARRANTIES SET FORTH ABOVE SHALL SUPERSEDE ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED BY SELLER OR ANY OF SELLER’S EMPLOYEES OR REPRESENTATIVES OR IN ANY OF SELLER’S BROCHURES, MANUALS, CATALOGS, LITERATURE OR OTHER MATERIALS. IN ALL CASES, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTIES CONTAINED HEREIN SHALL BE LIMITED TO, AT SELLER’S OPTION, CREDIT FOR THE DEFECTIVE PRODUCT OR THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT, PROVIDED THAT SAID PRODUCT IS RETURNED TO THE COMPANY ACCORDING TO THE PROCEDURE DESCRIBED BELOW, AND PROVIDED THAT UPON THE COMPANY’S EXAMINATION, THE PRODUCT, WHEN TESTED WITHIN THE SPECIFIED RATINGS AND IN ACCORDANCE WITH GOOD ENGINEERING PRACTICE, DOES NOT MEET THE WARRANTY CONTAINED HEREIN, AS SELLER IN ITS SOLE DISCRETION SHALL DETERMINE. SELLER AND CUSTOMER AGREE AND UNDERSTAND THAT THE PRICE STATED FOR THE PRODUCTS AND SERVICES HEREIN DESCRIBED IS IN CONSIDERATION FOR THE LIMITATION OF SELLER’S LIABILITY FOR A BREACH OF THE ABOVE DESCRIBED EXPRESS WARRANTY AND THAT SUCH LIMITATION REPRESENTS A VALID AND REASONABLE ALLOCATION OF COMMERCIAL RISK BETWEEN THE PARTIES.

WARRANTY REPLACEMENT AND ADJUSTMENT

All claims under warranty must be made in writing promptly after the occurrence of circumstances giving rise thereto and must be received within the applicable warranty period by Seller or its authorized representative. Each claim must include the product type and serial numbers or date code and a full description of the circumstances giving rise to the claim. Before any products are returned for repair and/or adjustment, written authorization from Seller or its authorized representative for the return and instructions as to how and where the products should be shipped must be obtained. Any product returned to Seller for examination shall be sent prepaid via the means of transportation indicated as acceptable by Seller. Seller reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been shipped by non-acceptable means of transportation. When any product is returned for examination and inspection, or for any other reason, Customer shall be responsible for all damage resulting from improper packing and handling and for loss in transit, notwithstanding any defect or nonconformity in the product. In all cases Seller has sole responsibility for determining the cause and nature of failure, and Seller’s determination with regard thereto shall be final. If it is found that Seller’s product has been returned without cause and is still serviceable, Customer will be notified and the product returned at Customer’s expense. In addition, a charge for testing and examination may, in Seller’s sole discretion, be made on products so returned.

LIMITATION OF LIABILITY

THE MAXIMUM LIABILITY, IF ANY, OF SELLER RELATING TO PRODUCTS SOLD HEREUNDER, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF THESE TERMS AND CONDITIONS OF SALE, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT WITH RESPECT TO THE PRODUCTS, OR ANY SERVICES IN CONNECTION WITH THE PRODUCTS, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF SUCH PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY OR OTHERWISE FOR ANY PUNITIVE, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS CUSTOMER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT THE REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

DISPUTES

Customer, if the products are delivered by Seller in North America, irrevocably consents to the exclusive jurisdiction and venue of the courts of Delaware, U.S.A., or the United States District Court for the District of Delaware in all matters arising out of or relating to the sale of products and/or services hereunder. For products delivered by Seller in Asia or Europe, Customer irrevocably consents to jurisdiction and venue of the courts of Singapore and England, respectively. Customer further irrevocably consents to service of process by certified or registered mail, return receipt requested, at Customer’s address set forth herein. No action, regardless of form, arising out of, or in any way connected with, the products or services furnished by Seller, may be brought by Customer more than one (1) year after the date of the Customer’s purchase order. If any part of the terms and conditions stated herein is held void or unenforceable, such part, to the extent void or unenforceable will be treated as severable, leaving valid the remainder of the terms and conditions which shall be deemed revised so as to remain enforceable to the greatest extent possible consistent with such holding.

Pulse Vancouver (“Buyer”) TERMS AND CONDITIONS OF SALE

Pulse Vancouver, WA (“Buyer”)

TERMS AND CONDITIONS OF PURCHASE

GENERAL

1.01 A Seller in this Terms and Conditions refers to the party contracted with the Buyer (as defined below) to supply Goods (as defined below) to the Buyer in consideration of the Payment (as defined below). A Buyer in this Terms and Conditions refers to the party contracted with the Seller to purchase Goods from the Seller. Subject to any modification under Clause 1.03 below, these Terms and Conditions supersede any other terms or conditions appearing in the Seller’s catalogues, sales literature or elsewhere, and shall override and exclude any other terms or conditions stipulated or incorporated or referred to by the Seller, whether in any quotation, acknowledgement or acceptance of order, specification or similar document or negotiations, or any course of dealing established between the Seller and the Buyer, and the Seller waives any right which it otherwise might have to rely on such terms or conditions. Any signed Purchase Order, this Terms and Conditions of Purchase and the Quality Assurance Agreement (collectively, the “Purchase Contract”) shall constitute a final entire agreement unless any change to the Purchase Contract is agreed by both the Buyer and the Seller in writing.

1.02 Contract for the purchase of the goods specified on the Buyer’s purchase order (the “Goods”) shall be concluded unless the Seller rejects the said purchase order in writing to the Buyer within 3 days upon receipt of the said purchase order. Any contract concluded shall be deemed to be subject to the Purchase Contracts notwithstanding the absence of Seller’s written acknowledgement of acceptance.

1.03 Without prejudice to Clause 7.03 below, no modification of the Purchase Contract shall be effective unless made in writing between the Buyer and the Seller. The signing by the Buyer of any of the Seller’s documentation shall not take effect as a modification of these conditions.

WARRANTIES 

2.01 The Seller will use all reasonable endeavors to procure for the Buyer the benefit of such warranties and other rights as are conferred on the Seller in relation to any part of the Goods, which is not of the Seller’s manufacture. 

2.02

The Seller hereby warrants and represents to and undertakes with the Buyer (but without limiting any other liability of the Seller in respect of the Goods) that the Goods (1) correspond in all respects with their description in the Purchase Contract and/or with the drawings, specifications or other descriptions or the sample of the Goods furnished or supplied by the Buyer to the Seller, (2) are of good and merchantable quality, material, workmanship and condition or are of such higher quality, material, workmanship and condition as shall be specified in the Purchase Contract, (3) are in all respects fit and sufficient and suitable for the purposes for which the Goods are intended which said purpose or purposes the Seller hereby acknowledges to have been declared or otherwise fully made known to the Seller, (4) are labeled, packed and shipped in accordance with all relevant federal, state or local laws and all orders, regulations and standards promulgated thereunder, and (5) in the case of manufactured Goods, are new and unused.

2.03 These warranties shall survive inspection, testing and acceptance of the Goods and shall run to the Buyer, its successors, assigns and customers, and to the users of the Goods, and shall be in addition to any other applicable warranties made by the Seller and to any applicable warranties at law.

2.04 If any of the Goods does not comply with the provisions set out in Clause 2.02 above, the Goods will be deemed defective and the Buyer shall be entitled to any of the remedies set out in Clause 10 below.

TERMINATION

3.01 The Buyer may terminate the Purchase Contract in whole or in part upon written notice of such termination to the Seller at any time. Failure to deliver within the time specified on the Purchase Contract shall be deemed a material default of the Seller. The termination of the Purchase Contract, however arising, shall be without prejudice to the rights and duties of the Buyer accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.

3.02 The Seller may not terminate the Purchase Contract in whole or in part unless a 6-month written notice of such termination is served by the Seller to the Buyer. The Seller shall, at the Buyer’s request, continue to procure and deliver to the Buyer during the 6-month termination notification period. In the event that the Seller fails to give the written termination notification and/or to deliver during the termination notification period, the Buyer shall be entitled to: (a) recover from the Seller any expenditure reasonably incurred by the Buyer in obtaining goods in substitution from another supplier; and/or (b) recover from the Seller any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Seller’s failure to deliver any of the Goods within the termination notification period.

PAYMENT DISCOUNT

4.0 The payment discount period shall be construed to start from the date of the Buyer’s receipt of either the relevant invoice(s) or the Goods hereunder, whichever is later. For the purpose of this Clause, the Buyer shall be deemed to have received the Goods, in the case of local sales, when the Goods are delivered to the place where the Buyer has appointed for delivery; and in case of oversea sales, when the Goods arrive at the port of destination.

PRICE

5.01 The Seller shall not increase the price of the Goods, which shall be inclusive of all charges, under any circumstances unless the Buyer otherwise agrees to such increase in writing. No extra charges shall be accepted by the Buyer. 

5.02 If no price is specified in the Purchase Order, the Goods shall be charged at prices not exceeding the last price previously quoted to the Buyer or the Seller’s standard prices in effect at the time of the date of the Purchase Contract whichever is lower. The Seller warrants that the prices specified in the Purchase Order are as low as any net price now given by the Seller to any other buyer of the same class for like materials and like quantities and the Seller agrees that if at any time during the pendency of the Purchase Contract lower net prices are quoted under similar conditions, such price shall apply to the Purchase Contract. 

PAYMENT

6.01 Payment for the Goods shall be by the methods, in the currency and within the time specified in the Purchase Contract, but time for payment shall not be of the essence of the Purchase Contract. 

SHIPMENT PACKING AND DELIVERY

7.01 Unless otherwise agreed in writing by the Buyer, partial shipments and trans-shipment of the Goods shall not be permitted. Where the Buyer agrees in writing to accept delivery by installments the Purchase Contract shall be construed as a single contract in respect of each installment. Never-the-less failure by the Seller to deliver any one installment shall entitle the Buyer at its option to treat the whole Purchase Contract as repudiated, 

7.02 The Seller shall be responsible for providing all necessary certificates of origin, export licenses, quotas and certificates of a similar nature. 

7.03 Separate instructions as to shipping, packing, labeling, presentation and/or assortment may be given to the Seller and shall when so given from part of the Purchase Contract. If there is an inconsistency between any of the instructions referred to in this Clause and the Purchase Contract, the instructions referred to in this Clause shall prevail. 

7.04 The place of delivery shall be specified in the Purchase Contract or the instructions referred to in Clause 7.03 above. 

7.05 The Goods shall be packed strictly as specified in the Purchase Contract or the instructions referred to in Clause 7.03 above and secured in such manner as to reach their destination in good condition under normal conditions of transport. The Seller shall off-load the Goods at its own risk as directed by the Buyer. The Buyer shall not be responsible for the costs of any boxing or packing materials. If the Seller requires the Buyer to return any boxing or packing materials to the Seller that fact must be clearly stated on any delivery note delivered to the Buyer and any such boxing or packing materials shall only be returned to the Seller at the cost of the Seller. Shipment and delivery shall also be in strict compliance with the time limit and quantities specified in the Purchase Contract. 

7.06 All shipment and delivery dates are not merely estimates but are of the essence. 

7.07 Unless otherwise specified by the Buyer in the Purchase Contract or the instructions referred to in Clause 7.03 above, deliveries shall only be accepted by the Buyer in normal business hours. 

7.08 If any of the Goods or installment of the Goods are or is not shipped or delivered within the time limit specified in the Purchase Contract or in compliance with the instructions referred to in Clause 7.03 above then, without prejudice to any other rights which it may have, the Buyer shall be entitled to: (a) cancel the Purchase Contact in whole or in part; (b) refuse to accept any subsequent delivery of the Goods which the Seller attempts to make, (c) recover from the Seller any expenditure reasonably incurred by the Buyer in obtaining goods in substitution from another supplier; and/or (d) recover from the Seller any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Seller’s failure to ship or deliver any of the Goods or installment of the Goods within the time limit specified.

7.09 If the Goods are delivered to the Buyer in excess of the quantities ordered the Buyer shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense. 

7.10 The Buyer shall not be deemed to have accepted the Goods until it has had twelve (12) months to inspect them following delivery in accordance with Clause 9.01 below. The Buyer shall also have the right to reject the Goods as though they had not been accepted for twelve (12) months after any latent defect in the Goods has become apparent. 

7.11 In the event of cancellation of the Purchase Contract in whole or in part in accordance with Clause 7.08(a) above, the Seller shall immediately refund to the Buyer any amount of the purchase price paid by the Buyer for any undelivered Goods, together with interest on that amount at the rate which the Buyer certifies to be the rate which would represent its cost of funding such amount from a major bank in USA from the date of the payment of such purchase price to the Buyer’s receipt of such refund. The Buyer is entitled to an interest on the amount of the said refund, being 5% over the USA Banking Corporation’s base rate per annum. 

PATENT RIGHTS ON BUYER’S DESIGNS

8.0 If the Goods are to be manufactured or supplied in accordance with the drawings, specifications or other descriptions which are furnished or supplied by the Seller and which are not based upon the drawings, specifications or other descriptions of the Buyer or upon the Buyer’s design, the Seller agrees to grant and hereby does grant the Buyer a non-exclusive, fully paid and irrevocable license to make, adapt, use and sell any improvement in the Goods which are made or introduced by the Seller in its work under the Purchase Contract. In the event of the termination or expiry of the Purchase Contract, any licenses granted pursuant to this Clause shall continue in full force and effect.

INSPECTION

9.01 The Buyer is authorized to appoint, without reference to the Seller, a duly qualified team of surveyors, analysts and/or weighers to inspect and test the Goods within thirty (30) days of the arrival at the port of destination or, within thirty (30) days of the arrival of the Goods at the place where the Buyer has arranged to store the Goods, and a certified report of such surveyors, analysts and/or weighers shall be conclusive and binding on the Seller, the Buyer and its sub-purchasers as to the quantity, quality, weight, condition, description and specification of Goods and their conformity or non-conformity (as the case may be) with the Purchase Contract and/or with the drawings, specifications or other descriptions or the sample of the Goods furnished or supplied by the Buyer to the Seller.

9.02 No inspection or testing of the Goods prior to shipment or at the port of shipment shall constitute an acceptance by the Buyer or its sub-purchasers of the Goods or of their conformity with the Purchase Contract and/or with the drawings, specifications or other descriptions or the sample of the Goods furnished or supplied by the Buyer to the Seller.

DEFECTIVE GOODS

10.01 If the Buyer is of the opinion, , that any of the Goods does not comply in all respects with the Purchase Contact or are otherwise defective in any respect, or the Seller fails to comply with any of the terms of the Purchase Contract the Buyer shall, in addition to all other rights and remedies of the Buyer, at its sole discretion be entitled to accept or reject such Goods (in whole or in part), to repudiate the whole Purchase Contract and/or to claim such damages as may have been sustained in consequence of the defective Goods or the Seller’s breach or breaches of the Purchase Contract. The Seller shall fully indemnify the Buyer against all loss, costs and expenses suffered by the Buyer arising from such defective Goods or the Seller’s breach or breaches of the Purchase Contract.

10.02 In the case of any rejected Goods, the Seller shall comply with the directions of the Buyer either to immediately refund to the Buyer the amount of any purchase price paid by the Buyer in respect of such Goods (together with interest on that amount at the rate referred to in paragraph 7.11 above for the period from the date of the payment of such purchase price to the date of the Buyer’s receipt of such refund) or to repair or (at the Buyer’s option) replace such Goods and carry out any other necessary work upon and subject to such terms and conditions as to shipment, delivery and otherwise as the Buyer shall stipulate.

10.03 The Seller shall be liable in all respects for any rejected Goods from the time notice of rejection is given by the Buyer to the Seller including without limitation, responsibility for all expense of unpacking, inspection, repacking, storage and collection of the Goods from the Buyer for return to the Seller or elsewhere.

PASSING OF RISK AND PROPERTY

11.01 Unless otherwise agreed in writing, the property in, and the risk of loss of damage to, the Goods shall pass to the Buyer on the arrival (including off-loading and stacking) of the Goods at the port of destination or, on the arrival (including off-loading and stacking) of the Goods at the place where the Buyer has arranged to store the Goods.

11.02 The Seller shall not be liable for any loss arising from any damage to the Goods occurring after the risk has passed to the Buyer.

ENGINEERING, INFORMATION,TOOLS, ETC.

12.01 All designs, tools, patterns, drawings, information and other equipment shall be furnished or supplied at the Seller’s expense unless otherwise provided in writing. All designs, tools, patterns, drawings, information or other equipment, or copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and other descriptions, supplied by the Buyer to the Seller, if any, shall be and remain the sole property of the Buyer. The Seller expressly agrees that the same will not be used in connection with the manufacture or design for the account of others, nor for the manufacture of large quantities otherwise than as called for in the Purchase Contract, nor for any other purpose otherwise than as authorized by the Buyer in writing. All such materials furnished or supplied by the Buyer to the Seller or not so supplied but used by the Seller specifically in connection with Purchase Contact, if any, shall be returned to the Buyer and the Seller shall use reasonable care in safeguarding such materials at its own risk, including protecting and maintaining the condition thereof, until such materials are returned to and received by the Buyer.

12.02 The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Buyer or its agents and any other confidential information concerning the Buyer’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Buyer and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.

GOVERNMENT CONTRACT

13.0 If the Goods to be furnished or supplied under this Purchase Contract are to be used by the Buyer in the performance of a government contract or subcontract a government contact number shall appear on the Purchase Contract and those clauses of the applicable government procurement regulations shall be deemed to be incorporated herein by reference. If there is an inconsistency between the applicable government procurement regulations and the Purchase Contract, the applicable government procurement regulations shall prevail.

INDEMNITY

14.01 The Seller shall fully indemnify and hold harmless the Buyer with respect to any claims, demands, suits or similar process made upon the Buyer with respect to any bodily injury, death or property damage by whomsoever such claim is made, which is based in whole or part upon the actual or alleged negligence, fault, acts or omissions of the Seller or any of its agents, servants or employees in respect of the assembling, manufacturing, packing, design or otherwise of the Goods.

14.02 The Seller shall fully indemnify the Buyer and any sub-purchasers against any action, claim, demand, costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any letters patent, registered design, trademark, trade name or other intellectual property right or of any personal, contractual, proprietary or similar rights caused by the use, manufacture or sale of the Goods.

14.03 The Seller shall fully indemnify the Buyer, by payment in cash immediately on demand, against any loss arising from any default by the Seller under the Purchase Contract or these Terms and Conditions (whether or not the Buyer shall cancel the Purchase Contract pursuant to such default) including, but not limited to, loss of profit on the resale of any Goods, and all costs, charges and expenses (legal and otherwise (including bank charges and confirming commission)), incurred by the Buyer as a result of such default.

14.04 Any indemnity to be provided by the Seller referred in this Clause 14 shall cover loss suffered by the Buyer or its customer whatsoever from any default by the Seller or its supplier whatsoever.

INSURANCE

15.0 The Seller shall arrange for adequate insurance to cover any liabilities described in Clause 14 above including, without limitation, fire and extended coverage insurance. The Seller shall safeguard and protect all designs, tools, patterns, drawings, information and other equipment furnished or supplied by the Buyer to the Seller and shall carry adequate insurance on the Buyer’s behalf to insure the Buyer from any losses or damages for which the Buyer may be liable or may incur, including loss of profits, arising from fire, theft, earthquake or any other insurable risks to such materials while they are in the possession or custody of the Seller or are in transit to or from the Seller’s facilities. On request the Seller shall produce the policy of insurance to the Buyer. The cost of such insurance shall be borne as indicated in the Purchase Contract (if applicable).

ASSIGNMENT

16.01 The Purchase Contract shall be binding upon and ensure for the benefit of each party’s successors and assigns.

16.02 The Seller shall not assign any or all benefits under the Purchase Contract without the prior consent in writing of the Buyer, which may if given be on such terms as to guarantee or indemnity or otherwise as the Buyer thinks fit.

16.03 The Buyer may assign the Purchase Contract or any part of it to any person, firm or company.

SET OFF

17.0 Without prejudice to any other right or remedy, the Buyer may set off any amount payable to the Seller under the Purchase Contract against all present and future indebtedness of the Seller to the Buyer.

MODIFICATIONS

18.01 The Purchase Contract and these Terms and Conditions constitute the entire agreement between the parties and supersede all previous agreements between the parties relating to the Goods described on the purchase order sent to the Seller and no addition to or modification of any provision of the Purchase Contract shall be binding upon the Buyer unless made in writing and signed by a duly authorized representative of the Buyer. The Seller acknowledges that, in entering into the Purchase Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Purchase Contract. Nothing in this Clause shall limit or exclude any liability for fraud. The Buyer and Seller shall come into discussion in relation to any compensation or additional charge by the Seller arising from changes made by the Buyer in the Purchase Contract prior to the date of shipment.

18.02 If any provision of the Purchase Contract or these Terms and Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Purchase Contract and these Terms and Conditions and the remainder of such provision shall continue in full force and effect.

GRATUITIES

19.0 The Seller shall not offer any form of gratuity to any employee of the Buyer with a view to obtaining any business from the Buyer.

FORCE MAJEURE

20.0 Where fulfillment of any of the Buyer’s obligations under the Purchase Contract is prevented or delayed as a result of an act of God, governmental actions, hostilities or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, industrial or civil action (whether or not relating to either party’s workforce), restraints or delays affecting carriers, delay or inability (despite all reasonable endeavors on the part of the Buyer) to obtain shipping space or supplies of adequate or suitable materials, accident or other circumstances beyond the reasonable control of the Buyer, the Buyer may upon giving notice thereof to the Seller, defer the date of delivery or payment or be relieved from all its obligations under the Purchase Contract or reduce the volume of the Goods ordered.

NOTICES

21.0 Any notice given under or pursuant to the Purchase Contract may be sent by post, registered post or recorded delivery service or transmitted by telex, telegram or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the respective address of the relevant party shown on the face of the Purchase Order or such other address as party may by notice to the other have substituted therefore shall be deemed validly and effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.

WAIVER

22.0 No claim or right of the Buyer under the Purchase Contract shall be waived or renounced in whole or in part unless the waiver or renunciation of such claim or right is acknowledged and confirmed in writing by the Buyer. Any such waiver by the Buyer shall not be deemed a waiver of any subsequent claim or right of the Buyer under the Purchase Contract and shall in no way affect the other terms of the Purchase Contract.

LAW

23.0 The Purchase Contract and these Terms and Conditions and any dispute or claim arising out or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in all respects in accordance with the laws of USA and the Seller hereby irrevocably submits to the non-exclusive jurisdiction of USA courts, but the Buyer reserves the absolute right to enforce the Purchase Contract in the court of any competent jurisdiction.