Terms and Conditions of Supply

SIMONA AMERICA INC.

SIMONA AMERICA Inc. Terms and Conditions of Supply


1. The Contract.
The following terms, together with (a) such terms as are set forth on the face of Supplier’s Confirmation Order, and (b) such additional terms as are approved in writing by Supplier, shall constitute the entire contract between Supplier and Buyer. Supplier hereby gives notice of its objection to and rejection of any different or additional terms. A contract is only finalized upon execution by the parties of a Confirmation of Order and the receipt by Supplier of any required down payment. Acceptance of an order by Supplier is made on the condition that all requirements imposed on Buyer as stated here and elsewhere are fulfilled.

2. Technical Documents.
Technical documents, furnished by Supplier to Buyer, such as drawings, descriptions, illustrations, designs and the like, shall be deemed provided to Buyer on a confidential basis, shall remain Supplier’s exclusive property and shall not be copied, reproduced or communicated to a third party in any way whatever. Information in technical documents shall serve as an approximate indicator only unless otherwise agreed in writing. Supplier reserves all copyright and other intellectual property rights with respect to all drawings, plans and other data.

3. Price.
Except as may be specifically provided on the face of Supplier’s Confirmation of Order or as may otherwise be agreed upon in writing by Supplier and Buyer, the price stated on the face of Supplier’s Confirmation of Order is based on US Dollars, [Ex Works] Supplier’s premises at 101 Power Boulevard, Archbald PA 18403, net without any deductions whatsoever. All additional costs, including (but not limited to) charges for freight, packing, carriage, insurance, customs duties, fees for export, transit, import and such other permits and certificates as may be necessary, shall be borne by Buyer. If charges for packing, freight, carriage, insurance, customs duties or other additional costs are separately stated on the face of Supplier’s Confirmation of Order and included in the price stated thereon, Supplier reserves the right to adjust its price should the costs on which such additional charges are based be modified. Buyer hereby grants Supplier a security interest in the goods until the full purchase price is paid.

4. Taxes.
Unless otherwise agreed in writing, Supplier’s prices are exclusive of any federal, state or local property, license, privilege, sales, use, excise, gross receipts or other like taxes which may now or hereafter be applicable to, measured by or imposed upon or with respect to the transaction, the goods, its sale, its value or its use, or any services performed in connection therewith.

5. Terms of Payment.
Except as otherwise provided on the face of Supplier’s Confirmation of Order or as may otherwise be agreed upon in writing by the parties, payment shall be made by check, wire or swift transfer and shall be due net [30] days from date of invoice. Check payments shall be sent directly to Supplier at 101 Power Boulevard, Archbald PA 18403, in US Dollars. Wire and swift transfers can be made directly to Supplier’s bank (contact Supplier for details). If Buyer does not observe the agreed date of payment, Supplier reserves the right to impose interest on overdue amounts from the date(s) due, at a rate 18 per cent per annum or a rate to be determined by Supplier, not exceeding the highest rate permitted by law. Payment of such interest does not release Buyer from its obligation to make payments when due. If, in the judgment of Supplier, the financial condition of Buyer, at any time during the manufacturing period or at the time the goods are ready for shipment, does not justify the continuance of the work to be performed by Supplier hereunder or the terms of payment specified, Supplier may require full or partial payment in advance. In the event of Buyer’s bankruptcy or insolvency or in the event any proceeding is brought against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Supplier shall be entitled to cancel any order then outstanding at a time during the period allowed for filing claims against the estate and shall receive reimbursement for its proper cancellation charges and expenses. Supplier’s rights under this contract are cumulative and are in addition to all rights available to it at law or in equity. In no event shall Buyer be entitled to hold back payments due or set off any claims against the purchase price without the prior written consent of Supplier.

6. Delivery Time.
The date(s) specified for delivery on Supplier’s Confirmation of Order are approximate and shall be reasonably extended if: (a) information required by Supplier from Buyer to execute the order is not received in a timely manner or if changes which delay delivery are agreed upon by Supplier and Buyer; (b) Supplier is not able to make timely delivery by reason of epidemics, act of civil or military authority, mobilization of armed services, war, riots, strikes, boycotts, picketing, lock-outs or other disturbances, delays caused by common carriers, serious breakdowns, accidents, labor conflicts, delayed or deficient delivery of necessary raw materials or semi-manufactured and manufactured products, official or other measures of whatever kind, transport difficulties, natural catastrophes and acts of God or any other event that impairs Supplier’s ability, despite due care, to deliver the goods; or (c) if Buyer is late in fulfilling its contractual obligations (including, but no limited to failure by Buyer to observe the terms of payment).

7. Risk of Loss.
Risk of loss of or damage to the goods shall pass from Supplier to Buyer upon delivery of the goods at the [Ex Works] Supplier’s premises at 101 Power Boulevard, Archbald PA 18403, regardless of whether title has passed to Buyer or transport is arranged or supervised by Supplier.

8. Limited Warranty.
Supplier hereby warrants that the goods shall, for a period of [12 months], be free from defects in material and workmanship. Supplier’s sole warranty obligation shall be the repair or replacement of any defective product.

THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR THE PURPOSE INTENDED), WHETHER WRITTEN OR ORAL OR IMPLIED IN FACT OR IN LAW, AND WHETHER BASED ON STATUTE, WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT) OR OTHERWISE. SUPPLIER’S WARRANTIES HEREIN RUN ONLY TO BUYER, AND ARE NOT EXTENDED TO ANY THIRD PARTIES WHICH, FOR THE AVOIDANCE OF DOUBT, INCLUDE ANY CUSTOMERS, AGENTS OR RESELLERS OF THE GOODS. SUPPLIER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF ITS PRODUCTS.

The warranty given under this section shall not apply to (a) goods and parts subjected to improper use, maintenance or operation, or (b) any goods manufactured to specifications supplied by or on behalf of Buyer. If any model, sample, brochure, advertisement or promotional material was shown to Buyer, such model, sample, brochure, advertisement or promotional material was illustrative in purpose and shall in no way constitute a representation of warranty by Supplier. Any information in technical documents shall serve as an approximate indicator only and shall not constitute a representation or warranty by Supplier.

9. LIMITATION OF LIABILITY.
SUPPLIER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, DAMAGE OR LOSS OF OTHER PROPERTY OR GOODS OR COST OF CAPITAL WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT), STRICT LIABILITY OR OTHERWISE. THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE, AND SUPPLIER’S LIABILITY WITH RESPECT TO ANY CONTRACT OR SALE OR ANYTHING DONE IN CONNECTION THEREWITH, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, OR OTHERWISE, SHALL NOT EXCEED THE COST OF THE GOODS OR PART ON WHICH SUCH LIABILITY IS BASED.

10. Severability.
All provisions of these General Conditions are severable and shall be interpreted and enforced as if all completely invalid or unenforceable provisions were not contained therein and partially valid and enforceable provisions shall be enforced to the extent valid and enforceable.

11. Governing Law and Jurisdiction.
These General Conditions and the relationship of the parties shall be governed by the internal laws of the Commonwealth of Pennsylvania without regard to the conflicts of law provisions of any state. The parties specifically waive any application of the U.N. Conventional on Contracts for the International Sale of Goods. Buyer hereby agrees to submit to the personal and exclusive jurisdiction of the federal and state courts located in the Commonwealth of Pennsylvania for purposes of all legal proceedings arising out of or relating to these General Terms. Seller reserves its rights to enforce these General Conditions in any other court of competent jurisdiction.


Revised: May, 2014

Contact:

SIMONA AMERICA Inc.

101 Power Boulevard
Archbald PA 18403
USA

Tel.: +1 866 501 2992
Fax: +1 800 522 4857