International Terms of Sale – Standard Products/Services
1.
Definitions. As used throughout these terms and
conditions, including provisions incorporated by reference,
the following terms shall have the meaning set forth
below:
(a)
“Buyer” means the person, firm, or corporation that
is purchasing Seller’s articles for its own use or for the
purpose of fulfilling its responsibilities on a contract.
(b)
“Contract” means the contractual instrument (e.g.
Agreement, Purchase Order, or Subcontract) into which
these General Provisions are incorporated.
(c)
“Seller” means General Dynamics SATCOM
Technologies, Inc., the legal entity providing goods and/or
services.
(d)
“Performance Start Date” means the date the
Contract is signed by both parties or accepted in writing by
an authorized representative of the Seller.
2.
Acceptance of Purchase Orders. All orders from
Buyer shall be deemed accepted only after Seller’s written
acceptance is executed by an authorized representative of
Seller and shall not be construed to be accepted by any
other action of Seller including, but not limited to,
commencement of performance or delivery.
Seller’s acceptance of any international purchase order is
conditioned upon the following actions: (a) Receipt of
minimum 20% down payment (unless adjusted or waived
during credit review), (b) Approval of credit terms, and (c)
Receipt of an acceptable End-Use/End-User certification
to satisfy Export Control requirements (per Article 13).
Seller’s acceptance of an order issued by Buyer shall be
expressly limited to the terms and conditions set forth
below and any others expressly set forth or referenced in
Seller’s written acceptance. Any additional or different
terms referenced in Buyer’s purchase order are subject to
Seller’s review and written acceptance..
Seller’s Performance Start Date shall be the definitive date
used by both parties marking when Seller’s work
commences under the order.
These terms and conditions represent the entire agreement
between the Buyer and Seller pertaining to the subject
matter of this order and shall supersede all prior oral and
written agreements, proposals, communications, and
documents.
TO THE EXTENT THAT THIS FORM AND
ACCOMPANYING DOCUMENTS CONSTITUTE AN
OFFER TO SELL, GENERAL DYNAMICS’ OFFER IS
EXPRESSLY LIMITED TO THE TERMS STATED
HEREIN. TO THE EXTENT THAT THIS FORM AND
ACCOMPANYING DOCUMENTS CONSTITUTE AN
ACCEPTANCE OF BUYER’S OFFER, SELLER’S
ACCEPTANCE
IS
EXPRESSLY
MADE
CONDITIONAL ON BUYER’S ASSENT TO THE
ADDITIONAL OR DIFFERENT TERMS HEREOF.
3.
Prices and Payment. All prices will be invoiced in
United States dollars and must be paid in full in United
States dollars. All prices are assumed to be exclusive of
value-added taxes unless expressly agreed in writing.
All international orders are subject to a minimum 20%
down payment. In general, invoicing for the balance due
shall occur upon shipment and/or rendering of service,
At Seller’s discretion, an irrevocable Letter of Credit for
all or part of contract price may be required of Buyer. In
such instances, the letter of credit must be issued by a
reputable international bank, and either advised or
confirmed, at Seller’s option, by:
Wells Fargo Bank N.A.
Charlotte, NC, USA,
SWIFT Address: PNBPUS33 OR PNBPUS33CHA.
Such letter of credit must be: (a) payable at sight upon
presentation, accompanied by commercial invoice and
evidence of shipment, (b) must allow for transshipments
and partial shipments, and (c) must state shipment terms as
Free Carrier (FCA), Seller’s named U.S.A. facility
(INCOTERMS 2010). Buyer shall be liable for bank fees
and charges associated with the administration of the letter
of credit. Such letter of credit must permit presentation of
documents to the United States bank within twenty-one
(21) days from the date of shipment. Issuance of letters of
credit not in accordance with these conditions may result
in delay in the acceptance of the order, non-shipment
and/or delay of shipment.
Unless otherwise agreed to by Seller in the specific
purchase order, Buyer shall pay for all amounts due
within thirty (30) days from (a) the date articles are
shipped or (b) date of the invoice, whichever is later.
Payment will be deemed to have been made when
received by Seller. Seller reserves the right to accrue
interest on late payments from the date due until receipt
by Seller of full payment at the lesser of (a) one and one-
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half percent per month compounded monthly, or (b) the
maximum rate permitted by law.
If in Seller’s judgment Buyer’s financial condition has
been impaired subsequent to acceptance of the order, then
Seller reserves the right, upon ten (10) days notice, to
require full or partial payment in advance, regardless of the
original agreed payment terms. In the event of bankruptcy
or insolvency of Buyer, Seller may cancel any order then
outstanding and receive reimbursement for applicable
cancellation charges.
4.0
Inspection and Acceptance.
4.1 Hardware. All articles shall be subject to final
inspection and acceptance at Seller’s facility. Buyer
agrees that any inspection or test on the premises of Seller
shall not delay or disrupt Seller’s performance. Buyer
further agrees that it shall comply with Seller’s security
and safety policies during any inspection or test on the
premises of Seller. Final inspection and acceptance by
Buyer shall be conclusive. If Buyer does not inspect the
Articles at Seller’s facility, inspection will be performed
by Seller's Quality Assurance Department. Seller shall
pack all articles according to agreed terms or, in the
absence of specific terms, in accordance with Seller’s
standard commercial practices and applicable regulations
for export shipment.
Final acceptance shall be deemed completed upon delivery
of the Articles to the carrier. Where the Parties agree in
writing that acceptance will occur after Buyer’s receipt,
Buyer’s acceptance will be deemed complete if Buyer
provides no written report of exceptions within ten (10)
days after receipt. It is further understood that Buyer’s (a)
placing of any articles provided hereunder into service
and/or (b) beneficial use of such articles shall constitute
final acceptance.
4.2 Software.
All software shall be considered
accepted: (a) if the recorded media, by which the licensed
software is provided, is furnished free of manufacturing
defects and damage, provided that the media has been
properly installed by the Buyer or (b) thirty (30) days after
delivery, whichever occurs first.
4.3 Services. Buyer shall accept the Services or give
Seller notice of rejection within a reasonable time after
performance, notwithstanding any payment or prior test or
inspection. No inspection, test, delay or failure to inspect /
test or failure to discover any defect or other
nonconformance shall relieve Seller of any of its
obligations under this agreement or impair any rights or
remedies of Buyer or Buyer’s customers.
Buyer may require Seller, as its first recourse, to promptly
correct or re-perform the nonconforming Services if Seller
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delivers nonconforming Services. If Seller refuses to
correct or reperform, Buyer may either (a) correct the
nonconforming Services or (b) obtain replacement
Services from another source at Seller’s expense and
reduce the Contract price by the costs to correct or obtain
replacement. Seller shall disclose any corrective action
taken. All repair, replacement and other correction and
redelivery shall be completed within the original delivery
schedule or such later time as Buyer may reasonably
direct. Redelivery to Buyer of any corrected or reperformed Services shall be at Seller’s expense.
5.
Delivery and Risk of Loss. All shipments are Free
Carrier (FCA), Seller’s named U.S.A. facility or location
(INCOTERMS 2010). Title and risk of loss or damage to
an article sold hereunder will pass to Buyer at the FCA
point regardless of any provisions for payment of freight
or insurance by Seller. Delivery dates are best estimates
only and are not guaranteed unless expressly agreed in
writing. At its option Seller reserves the right to make
deliveries in installments.
If Buyer delays shipment and fails to negotiate a contract
change in good faith within fourteen (14) days of the
specified ship date, Seller may invoice and warranty shall
be deemed to commence as though shipment had occurred
as specified. If Buyer fails to pick-up articles within the
grace period described above, Seller reserves the right to
move such articles into storage or to dispose of such
articles and charge any incidental costs to Buyer.
The shipment of any article(s) or elements of such articles
may be contingent (for order as a whole or for certain
articles) on Buyer’s and/or Seller’s compliance with export
regulations as described in Article 13.
6.
Force Majeure. Neither party shall be liable for
any delay in performance, excess costs, or other damages,
when such delay is directly or indirectly caused by the
occurrence of any contingency event beyond the
reasonable control either of Seller or Seller’s suppliers
(whether or not similar in nature to any of those specified
herein), which include, but are not limited to (a) war
(whether an actual declaration thereof or not), (b)
sabotage, (c) insurrection, (d) riot or other act of civil
disobedience, (e) act of a public enemy, (f) rationing
allocations, (g) failure or delay in transportation, (h) act of
any government or any agency or subdivision thereof, (i)
judicial action, (j) labor dispute, (k) accident, (l) fire, (m)
explosion, (n) flood, storm or other act of God, (o)
shortage of labor, fuel, raw material or machinery or (p)
technical failure where Seller has exercised ordinary care
in the prevention thereof. Material, tools, dies and other
equipment furnished Seller by Buyer shall be at Buyer’s
risk and expense; however, Seller shall exercise due care
in the protection of Buyer’s property. Seller shall notify
Buyer in writing within ten (10) calendar days after the
beginning of any such event.
and the Buyer shall look solely to such vendor and/or
licensor for warranty repair.
Should either party be unable to fulfill a material part of
its obligations under this Contract for a period in excess of
sixty (60) days due to circumstances beyond its reasonable
control as described above, the other party may at its sole
discretion terminate the Contract by written notice. Upon
either resolution of the Force Majeure event or termination
as described, the parties shall proceed in good faith to
negotiate an equitable settlement.
With regard solely to Seller’s manufactured RF Electronics
equipment (labeled as Seller manufactured), specifically
Solid State Power Amplifiers (SSPAs), Solid State Power
BUCs (SSPBs), Low Noise Amplifiers (LNAs), Line
Drive Amplifiers (LDAs), Low Noise Block Converters
(LNBs), Block Up Converters (BUCs), Block Down
Converters (BDGs), Synthesized Converters, Redundant
Controllers, Remote Panels for LNAs, Remote Panels for
SSPAs, Amplifier Power Supply & Monitor, and Rack
Mount References (RMRs), such items shall carry a three
(3) year warranty
7.
Taxes, Customs, Licenses and Insurance. Buyer
shall bear all value-added and local income taxes, customs
duties, import license fees, excise taxes, work permits,
licenses, or other charges imposed by governmental or
quasi-governmental bodies, other than Seller's United
States income or franchise taxes thereon, assessable on an
article or service sold hereunder. Unless agreed in writing
between the parties, Buyer assumes responsibility for any
satellite or wireless antenna communication certifications
or national homologations as may be required by the
destination country. Buyer will obtain and pay for any
necessary in-transit or other insurance and will bear all
other costs of sale after Seller’s delivery to the FCA point.
Buyer also agrees to sponsor Seller’s employees for any
required VISA applications.
8.0 Warranty. This clause applies unless a separate
warranty agreement for the specific product and/or service
is attached and takes precedence.
8.1 Hardware. Seller warrants that any article sold to
Buyer hereunder, which is provided by Seller, will at the
time of shipment be free and clear of all liens and
encumbrances, will be free from defects in material and
workmanship, and will conform to Seller's applicable
specifications or, if appropriate, to Buyer's specifications
accepted by Seller in writing.
If any article sold
hereunder, which is provided by Seller, is not as
warranted, Seller will, at its option, repair or replace the
article and return the article under the same delivery terms
and conditions as originally used or refund the purchase
price, provided proof of purchase and written notice of
nonconformance are received by Seller within one (1) year
from the date of shipment, and provided the nonconforming article is, with Seller's prior written
authorization, returned to Seller's facility at Buyer's
expense no later than thirty (30) days after the expiration
of the warranty period. Seller shall warrant repaired
articles as to the particular defect subject to repair, for
ninety (90) days after shipment or the remaining warranty
term, whichever is longer. Seller's total liability is limited
to the total price of the article.
After the warranty period stated herein has expired, some
vendor and/or licensor warranties may still be in effect,
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This warranty does not apply to any article not in its
original condition or which Seller determines has been, by
Buyer or otherwise, subjected to testing for other than
specified electrical characteristics, to operating and/or
environmental conditions in excess of the maximum values
established, or to mishandling, misuse, neglect, improper
installation, testing, repair, alteration, damage, assembly or
processing that alters physical or electrical properties. Also
excluded from this warranty are ancillary items of
indeterminate life, such as bulbs, fuses, etc.
Seller's warranty will not be enlarged by, and no obligation
or liability will arise out of, Seller's rendering of technical
advice or provision of facilities in connection with an
article sold hereunder.
THIS WARRANTY EXTENDS TO BUYER ONLY AND
MAY BE INVOKED ONLY BY BUYER ON BEHALF
OF ITS CUSTOMERS. SELLER WILL NOT ACCEPT
WARRANTY RETURNS DIRECTLY FROM BUYER'S
CUSTOMERS OR USERS OF BUYER'S PRODUCTS.
THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES,
CONDITIONS
OR
REPRESENTATIONS WHATSOEVER, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WARRANTIES
OF
MERCHANTABILITY
OR
FITNESS, ALL OF WHICH ARE HEREBY
EXPRESSLY EXCLUDED.
8.2 Software. Seller warrants that under normal use,
the Software shall perform the functions specified in its
documentation. If the Software does not conform to its
documentation such that its functional performance is
significantly affected and Seller is notified in writing
within ninety (90) days from the date of purchase along
with a copy of the receipt of purchase, Seller shall have the
option of refunding the purchase price or replacing the
Software as Licensee's exclusive remedy.
8.3 Services. Seller warrants that each of its employees
assigned to perform the Services hereunder shall have the
proper skill, training and background so as to be able to
perform in a competent and professional manner and that
all work will be performed in accordance with the
applicable statement of work.
the article be returned to Seller and reimburse Buyer the
purchase price less a reasonable charge for use and
depreciation of the article.
SELLER EXPRESSLY DISCLAIMS ANY WARRANTY
RELATED TO TESTING OR SERVICES PROVIDED
UNDER THIS ORDER INCLUDING ANY EXPRESS,
IMPLIED OR STATUTORY WARRANTY, OR
WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. IN NO EVENT
WILL SELLER BE LIABLE FOR ANY INCIDENTAL
OR CONSEQUENTIAL DAMAGES.
This indemnity does not extend to any suit based upon any
infringement or alleged infringement of any patent or
copyright resulting from any combination of any article
furnished by Seller with other elements or articles if such
infringement would be avoided by the use of the article
alone, nor does it extend to any article or portion thereof
employing Buyer's design or formula or to any
manufacturing process specifically required by Buyer and
not otherwise used by Seller.
9.
Product Support and Spares. Buyer recognizes
that its order may occur at any stage of a given product,
subsystem or component lifecycle.
Accordingly,
subsequent to fulfillment of its warranty obligations and
except as may be negotiated in the Contract, Seller makes
no commitments regarding the time period for availability
of spare parts and/or technical support services. From time
to time, Seller will make End-of-Life (EOL) product
announcements and/or Last Time Buy Notices related to
its products, subsystems and components. Seller will
cooperate with Buyer in a commercially reasonable
manner to support products during their operational lives
and recommend appropriate sparing levels and/or locate
replacement products, subsystems, and components, as
may be applicable.
10. Changes. No modification, alteration, addition, or
change to this agreement shall be binding on either party
unless reduced to writing and duly executed by authorized
representatives of both parties.
11. Termination. No purchase order accepted by
Seller may be terminated by Buyer for other than Seller’s
default except by mutual agreement of Buyer and Seller as
evidenced by a written Purchase Order amendment signed
by authorized representatives of both parties.
Buyer agrees to defend at Buyer's expense any suits
against Seller based upon a claim that any article or
portion thereof furnished hereunder by Seller to Buyer,
which is of Buyer's design or formula or any
manufacturing process specifically required by Buyer and
not otherwise used by Seller, infringes any United States
patent or United States copyright, and to pay costs and
damages finally awarded in any such suit, provided that
Buyer is notified promptly in writing of the suit and at
Buyer's request and at Buyer's expense is given control of
the suit and all requested reasonable assistance for defense
of the suit.
This indemnity does not extend to any suit based upon any
infringement or alleged infringement of any patent or
copyright resulting from any combination of any article of
Buyer's design or formula with other elements if such
infringement would be avoided by the use of the article by
itself.
The delivery and/or sale of any article furnished hereunder
does not convey any license by implication, estoppel, or
otherwise under any proprietary right including any
copyright, trademark, trade secret and/or patent of Seller
covering combinations of these articles with other
elements.
12.0 Patent and Copyright Indemnification.
12.1 Hardware/Software. Seller agrees to defend at
Seller's expense any suits against Buyer based on a claim
that any article furnished hereunder by Seller to Buyer,
excluding software not wholly developed by Seller,
infringes a United States patent or United States copyright,
and to pay costs and damages finally awarded in any such
suit, provided that Seller is notified promptly in writing of
the suit, and at Seller's request and expense is given control
of the suit and all requested reasonable assistance from the
Buyer for the defense of the suit. If the use or sale of an
article furnished hereunder is enjoined as a result of such
suit, Seller, at Seller's option and at no expense to Buyer,
shall obtain for Buyer the right to use and sell the article or
shall substitute an equivalent article acceptable to the
Buyer and extend this indemnity thereto, or shall require
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UNDER NO CIRCUMSTANCES WILL SELLER BE
LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL,
INDIRECT, OR SPECIAL DAMAGES ARISING FROM
ANY LOSS, DAMAGE, EXPENSE OR INJURY
ARISING FROM INFRINGEMENT OR ALLEGED
INFRINGEMENT OF PATENTS OR COPYRIGHTS.
THE FOREGOING STATES THE ENTIRE LIABILITY
OF SELLER FOR PATENT OR COPYRIGHT
INFRINGEMENT.
12.2 Services. Seller agrees to not incorporate Seller or
third party intellectual property into the work product of
this Contract without the express prior written permission
of Buyer.
Seller will indemnify, defend and hold harmless Buyer and
its customer from all claims, suits, actions, awards,
liabilities, damages, costs and attorneys' fees related to the
actual or alleged infringement of any United States patent
or copyright arising out of the services performed by
Seller. Buyer and/or its customer will notify Seller of any
such claim, suit or action; and Seller will, at its own
expense, fully defend such claim, suit, or action on behalf
of indemnitees.
Seller will have no obligation under this article with regard
to any infringement arising from (a) Seller's compliance
with formal specifications issued by Buyer where
infringement could not be avoided in complying with such
specifications or (b) use or sale of products in combination
with other items when such infringement would not have
occurred from the use or sale of those products solely for
the purpose for which they were designed or sold by
Seller.
13. Rights and Use of Technical Information. Any
specifications, drawings, reprints, technical information or
data furnished by Seller to Buyer under this agreement
shall remain Seller's property, shall be kept confidential by
Buyer, and shall be returned to Seller at Seller's request.
Such documents shall be used by Buyer only for the
purpose of performing the work under this agreement and
shall not be used for any other purpose unless agreed to in
writing by Seller. Patents embodied in designs, tools,
patterns, drawings, information, or articles supplied by
Seller under this agreement, and all rights therein, are
reserved by Seller.
Unless otherwise agreed to in writing by both parties
hereto, any information disclosed, in whatever form and
regardless of any markings, to Seller by Buyer in
connection with this agreement shall not be deemed to be
confidential or proprietary, and shall be disclosed by Buyer
to Seller without any restrictions as part of the
considerations for this agreement.
Seller shall have the right to reproduce and use any and all
information and technical data delivered pursuant to this
agreement.
14. Export Control. Buyer agrees that it will not,
without the prior authorization of Seller and the Bureau of
Industry and Security, United States Department of
Commerce; the Office of Defense Trade Controls, United
States Department of State; or the Office of Foreign Assets
Control (OFAC), United States Department of the
Treasury, whichever is applicable, in any form export or
re-export, sell or resell, ship or reship, or divert, through
direct or indirect means, any article or technical data or
service or direct or indirect article thereof sold or
otherwise furnished hereunder to any person within any
territory for which the United States Government, or any
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agency thereof, at the time of such action, requires an
export license or other governmental approval, without
first obtaining such license or approval.
Prior to the acceptance of any purchase order, Buyer must
disclose in writing any actual or intended end-use and enduser. If there is any end-user other than Buyer, then Buyer
shall, at the time of its disclosure, identify all pertinent
laws or regulations affecting Seller’s performance of this
agreement. Seller reserves the right, at its option, to
terminate any order hereunder or this agreement itself, or
to rescind or revise its offer and price, if there is any such
law or regulation that Seller in its sole discretion believes
makes this agreement or any order hereunder no longer
desirable. Buyer agrees to indemnify and hold harmless
Seller, its officers, directors, employees and agents from
and against any and all loss or liability for any and all
claims, losses, demands, expenses, penalties or costs
(including attorneys’ fees) resulting from failure of Buyer
to comply with this provision.
15. Limitation of Liability. Notwithstanding any other
provisions or language in this Contract to the contrary, in
no event shall Seller’s total liability under this
Contract (including breach of contract actions, or any
action arising in tort) exceed the total price hereof.
Furthermore, no action shall be brought for any breach of
this agreement more than one (1) year after the cause of
such action.
UNDER NO CIRCUMSTANCES WILL SELLER BE
LIABLE IN CONTRACT OR OTHERWISE FOR
ANY INCIDENTAL,
CONSEQUENTIAL,
INDIRECT, OR SPECIAL DAMAGES ARISING
FROM ANY LOSS, DAMAGE, EXPENSE OR
INJURY SUSTAINED FROM OR IN CONNECTION
WITH THE SALE, INSTALLATION, USE, SERVICE
OR FAILURE OF ANY ARTICLE SOLD
HEREUNDER, OR ANY DEFECT THEREIN, OR
FROM ANY OTHER CAUSE. BUYER'S REMEDY,
IF ANY, WILL BE STRICTLY LIMITED TO THE
TERMS OF THIS CONTRACT.
16. Translations. In the event of translation into a
language other than English, the English language version
of these terms of sale and all documents related to or
connected with this order, including any specifications or
statements of work, will be considered the authentic and
controlling text for all purposes including but not limited
to resolution of conflict or ambiguity in interpretation of
rights and obligations under this agreement.
17. Order of Precedence. In the event that two or
more provisions in this Contract conflict and there is no
reasonable interpretation that resolves the conflict in a
manner that is consistent with the entire Contract, then
the parties shall resolve the conflict using the following
descending order of precedence: (a) notes in Purchase
Order which clarify or document agreement on very
specific aspects of Articles contained in these
International Terms of Sale; (b) these International
Terms of Sale; and (c) the Statement of Work.
18. Governing Law and Disputes. This agreement
shall be governed, construed, and enforced in accordance
with the substantive laws of the State of New York,
U.S.A., excluding its conflict of laws. Any dispute,
controversy, or claim, which is not settled by mutual
agreement, except for those concerning intellectual
property, shall be submitted to a mutually acceptable
neutral advisor for initial fact-finding in preparation for
mediation or other form of alternate dispute resolution.
Any dispute which cannot be so resolved between the
parties in good faith within six months of the date of the
initial demand for fact-finding, and all disputes relating to
intellectual property, shall be finally determined in a court
of competent jurisdiction in the State of New York, U.S.A.
Seller and Buyer expressly disclaim the application of the
United Nations Convention on Contracts for the
International Sale of Goods to this transaction.
19. Assignment. Buyer is not authorized to make any
assignment of this agreement without Seller’s prior written
consent, which shall not be unreasonably withheld. Buyer
understands that Seller’s rights to assign are not restricted
and that, in particular, this agreement may be assigned by
Seller to any of its affiliates.
20. Offset/Countertrade. This agreement does not
include any offset/countertrade commitment. Should the
Buyer require any offset/countertrade as a condition of
purchase, the Seller reserves the right, at its option, to
terminate any order hereunder or this agreement itself, or
to rescind or revise its offer and price.
21. Foreign Corrupt Practices Act and Anti-Bribery
Laws. Buyer agrees that in connection with activities
under this Agreement it shall not make or promise to make
any bribes, improper payments, or provide or offer to
provide anything of value, directly or indirectly, to
government officials or other parties in violation of the
U.S. Foreign Corrupt Practices Act or other applicable
anti-bribery laws.
22. Compliance with Laws.
Seller represents,
warrants, and certifies that it will comply with all: (a) laws
applicable to the articles, services and/or the activities
contemplated or provided under this Contract, including,
but not limited to, any national, international, federal, state,
provincial or local law, treaty, convention, protocol,
common law, regulation, directive or ordinance and all
lawful orders, including judicial orders, rules and
regulations issued thereunder, including without limitation
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those dealing with the environment, health and safety,
employment, records retention, personal data protection
and the transportation or storage of hazardous materials
and (b) good industry practices, including the exercise of
that degree of skill, diligence, prudence and foresight,
which can reasonably be expected from a competent Seller
who is engaged in the same type of manufacture or service
under similar circumstances.
23. Environment, Health and Safety (European Union
Directives apply to EU Contracts Only).
(a)
General. As used in this Contract, the term
“hazardous materials” shall mean any substance or
material defined as a hazardous material, hazardous
substance, toxic substance, pesticide or dangerous article
under U.S. Government Code of Federal Regulations
49 CFR 171.8 or any other substance regulated on the
basis of potential impact to safety, health or the
environment pursuant to an applicable requirement of any
entity with jurisdiction over the activities, articles or
services, which are subject to this Contract. Seller agrees
to cooperate fully with Buyer’s audit and/or inspection
efforts (including completing and returning questionnaires)
intended to verify Seller’s compliance with the applicable
hazardous materials regulations under this Contract. Seller
further agrees at Buyer’s request to provide certificates
relating to any applicable legal requirements or to update
any and all of the representations, warranties, certifications
and covenants under this Contract in form and substance
satisfactory to Buyer.
(b)
RoHS Compliance. Seller represents during the
performance of this Contract that, upon request, it will
provide written certification of compliance that its articles
comply with EU (and other country similar requirements)
regulations known as the RoHS Directives (Restriction of
Hazardous Substances in electrical and electronic
equipment). RoHS compliant means that the substances
restricted by the EU are not contained in a finished product
above threshold limits unless the restrictive substance is
subject of an exemption contained in the RoHS Directive.
(c)
REACH Compliance. Seller represents during the
performance of this Contract that, upon request, it will
provide written certification of compliance that its articles
comply with the EU REACH regulations (Registration,
Evaluation, Authorization and Restriction of Chemicals).
Seller will monitor the European Chemicals Agency
candidate list of Substances of Very High Concern
(SVHC), and immediately notify Buyer if any of the
articles supplied to Buyer contain a SVHC over the
threshold limits. Seller shall provide Buyer with the name
of the substance(s) as well as sufficient information
(including relevant exemptions) to allow Buyer to fulfill its
own obligations under REACH. Upon request from Buyer
and subject to reasonable confidentiality provisions which
enable Buyer to meet its compliance obligations, Seller
will provide Buyer with the chemical composition and
other relevant information, including proportions, of any
substance, preparation, mixture, alloy or articles supplied
under this Contract.
(d)
WEEE Compliance. The EU Waste Electrical and
Electronic Equipment (WEEE) Directive set collection,
recycling and recovery targets for various products. For
any products specifically listed in this Contract that are
covered by the WEEE Directive. Seller agrees to manage
them in accordance with the applicable requirements of the
WEEE Directive.
(e)
CE Markings and Declarations. Seller represents
that its articles shall conform with applicable Conformité
Européenne (“CE”) directives for goods intended for use
in the EU. Seller will affix the CE mark on articles as
required. Upon request from Buyer, Seller will provide
documentation required by the applicable CE directives.
24. General. Buyer acknowledges that it has read and
understands and agrees to be bound by these terms of sale,
that these terms of sale are the complete and exclusive
statement of the agreement between the parties and
supersede all prior communications between the parties
relating to the sale of articles or services hereunder. No
waiver of a breach or a provision of this agreement will
constitute a waiver of any other breach or provision. If
any part of these terms is declared null and void, the
remaining portions will remain in full force and effect. It
is hereby agreed that the rights and obligations of the
parties contained in Articles 8, 9, and 12 through 23 shall
survive and continue after any termination or cancellation
of this order and shall continue to bind the parties, their
successors, their assigns and their legal representatives.
25. Orders for Labor Services Only. In the event that
this order pertains only to labor services being provided by
Seller to Buyer, the word “article” shall mean “services.
In addition, Articles 4.1, 4.2, 5, 8.1, 8.2, 9, 12.1 and 23 are
not applicable to such services provided by Seller.
LDF40 Dated 10-6-2014 (GDST)
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