Amphenol Energy Technologies
Amphenol Nelson Dunn Technologies / Amphenol EEC, Inc. / Amphenol Middle East Enterprises, FZE
TERMS AND CONDITIONS OF SALE
1. APPLICABLE TERMS AND CONDITIONS: The acknowledgment of this order by the seller or commencement of any performance by the seller pursuant to this order shall constitute purchaser’s acceptance of the seller’s terms and conditions and the prices set forth herein and this order is expressly conditioned upon the applicability of seller’s terms and conditions exclusively. No terms or conditions stated by the purchaser shall be binding on the seller unless such terms or conditions are expressly accepted in writing by the seller. The failure of the seller to specifically object to any or all the terms and conditions set forth herein and the purchaser, upon the acknowledgment of the quotation or upon seller’s commencement of performance hereunder, shall be deemed to have withdrawn any such terms and conditions that conflict with, are inconsistent with, or are in addition to the terms and conditions set forth herein.
2. ENTIRE AGREEMENT: These Terms will govern all purchases of goods or services by Buyer from Seller. The Agreement constitutes the entire agreement between the parties supersedes all prior oral or written quotations, proposals and communications between the Buyer and Seller related to the goods and services.
3. CHANGES: The purchaser may, at any time, in writing, make changes within the general scope of this order in the drawings, designs, specifications, shipping or packing instructions of place or delivery. If any such changes cause an increase or decrease in the cost of or the time required for performance of any such purchase order affected by such change an equitable adjustment in the price, the delivery schedule or both shall be made, and such order shall be modified accordingly.
4. ACCEPTANCE: All goods will be deemed accepted unless Buyer notifies Seller of rejection within three days of delivery. Buyer may reject the goods only for material non-conformities to the warranties in Section 5
5. WARRANTY:
a. For a period of one year after the date of shipment, Seller warrants that the goods: (a) will be free of defects in material and workmanship under normal use and service and (b) will be free of liens and encumbrances when shipped to Buyer. Buyer shall notify Seller in writing within ten (10) calendar days after discovery of the failure of any good to conform to the warranty set forth above, shall describe in commercially reasonable detail in such notice the symptoms associated with such failure, and shall immediately provide to Seller the opportunity to inspect such good as installed, if possible. The notice must be received by Seller within one year after the date of delivery, but no later than ten (10) days after discovery. Unless otherwise directed in writing by Seller, within thirty (30) calendar days after submitting such notice, Buyer shall package the allegedly defective good in its original shipping carton(s) or a functional equivalent and shall ship it to Seller. Within a reasonable time after receipt of the allegedly defective goods and verification by Seller that the goods fail to meet the warranty set forth above, Seller shall correct such failure by, at Seller’s option, either (i) modifying or repairing the goods or (ii) replacing the goods. Such modification, repair or replacement and the return shipment of the goods with minimum insurance to Buyer shall be at Seller’s expense. Buyer shall bear the risk of loss or damage in transit and may insure the goods. Buyer shall reimburse Seller for transportation costs incurred for goods returned but found by Seller not to be defective. Modification or repair of goods may, at Seller’s option, take place either at Seller’s facilities or at Buyer’s premises. If Seller is unable to modify, repair or replace goods to conform to the warranty set forth above, then Seller shall, at Seller’s option, either refund to Buyer or credit to Buyer’s account the purchase price of the goods less depreciation calculated on a straight-line basis.
b. On value-add assemblies such as cable assemblies and service loops warranty cover 12 months from the ship date on carrier documentation. For warranty conditions to be valid all service loops must be laid straight for 24 hours before being installed; this works out the bends that are created as a result of storage, failure to do this negatively affects the normal use of service loops and in consequence negatively affects the 12 months warranty of the product.
c. THE TERMS OF THE APPLICABLE WARRANTIES, AS SET FORTH ABOVE, ARE THE SOLE AND EXCLUSIVE WARRANTY TERMS THAT SHALL HAVE ANY FORCE AND EFFECT, AND SUCH TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED.
d. AMPHENOL DISCLAIMS ANY LIABILITY WHETHER UNDER THIS WARRANTY OR OTHERWISE FOR ANY FAILURE OF ITS PRODUCT WHICH IS CAUSED BY, IN WHOLE OR IN PART, THE USE IN OR WITH THAT PRODUCT OR COMPONENT PARTS NOT MANUFACTURED BY AMPHENOL.
6. WARRANTY EXCLUSIONS; LIMITATION OF EXPRESS WARRANTY:
a. Buyer shall be fully responsible for ensuring that its needs and requirements are met and fulfilled by the goods ordered in its purchase order. Under no circumstances shall Seller be responsible for, or held liable in respect of, any statement or representation relied upon by Buyer which is not included in Seller’s Offer. Any samples, models, drawings, affirmations of fact, descriptions, or advertising issued or published by Seller and any descriptions of the goods contained in Seller’s marketing materials or websites are for informational purposes only and shall not create any warranty of any kind.
b. Unless otherwise expressly provided in the Agreement, Seller does not warrant: (i) the adequacy of the specifications provided by Buyer; (ii) design; (iii) failures of cable assemblies or service loops as a result of Buyer’s design; (iv) that Seller or the goods are certified or approved by any entity or organization or are in compliance with any industry standards, guidelines or procedures; or (v) the goods will comply with the requirements of any safety or environment code or regulation of any federal, state, municipality or other jurisdiction. Buyer affirms that it has not relied upon Seller’s skill nor judgment to select or furnish the goods for any particular purpose beyond the specific express warranties in the Agreement and that any design provided by Seller is based on information provided by Buyer. Seller provides no warranty as to prototype goods or as to goods used by Buyer in any program or application other than the specific program identified in Seller’s Offer for the goods.
c. Seller shall not be liable for any breach of warranty arising out of the failure of a directed supplier to provide conforming directed supplies. Seller shall not be liable for any breach of warranty arising from a third party’s assembly of the goods. Seller’s warranties shall apply only if the goods: (i) have been installed, maintained and used in conformity with instructions furnished by Seller from time to time, if any, and otherwise in conformity with the highest industry practices; (ii) have been subjected only to normal use for the purpose for which the goods were designed; (iii) have not been subjected to misuse, negligence or accident; (iv) have not been improperly stored; (v) have not been altered or repaired by persons other than Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of the goods; (vi) have been used in accordance with the specifications; (vii) have not been exposed to conditions not indicated in the specifications; and (viii) have been fully paid for. Seller’s warranties are not assignable and are not for the benefit of any third party.
7. EXCLUSIVE REMEDIES, LIMITATION OF LIABILITY, INDEMNITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN ANY OTHER WRITING, SELLER’S TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE, INCLUDING CLAIMS ALLEGING NEGLIGENCE OR GROSS NEGLIGENCE, ARISING OUT OF AND/OR IN ANY WAY RELATED TO THESE TERMS OR THE MANUFACTURE, SALE OR DELIVERY OR USE OF SELLER’S GOODS OR SERVICES WILL BE LIMITED TO THE DIRECT DAMAGES BUYER ACTUALLY INCURS NOT TO EXCEED THE LESSER OF: (A) $500,000 OR (B) THE PURCHASE PRICE OF THE AFFECTED GOODS DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN ANY OTHER WRITING, IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFIT, LINE DOWN COSTS OR CLAIMS OF THIRD PARTIES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING CLAIMS ALLEGING NEGLIGENCE OR GROSS NEGLIGENCE. THESE LIMITATIONS APPLY EVEN IF BUYER’S EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. By accepting delivery of the goods ordered, Buyer agrees that it indemnifies and holds harmless Seller from and against all claims, loss, damage and liability, including without limitation for personal injury, property damage or commercial loss of whatever kind, directly or indirectly arising from or relating to the hazards inherent in Buyer’s facilities or activities. Buyer assumes the risk and agrees to indemnify Seller against and hold Seller harmless from all liability relating to (i) assessing the suitability for Buyer’s intended use of the goods and of any system design or drawing and (ii) determining the compliance of Buyer’s use of the goods with applicable laws, regulations, codes, and standards. Buyer retains and accepts full responsibility for all warranty and other claims relating to, or arising from, Buyer’s products which include or incorporate goods or components manufactured or supplied by Seller. Buyer is solely responsible for any and all representations and warranties regarding the products made or authorized by Buyer. Buyer will indemnify Seller and hold Seller harmless from any liability, claims, loss, cost or expenses (including reasonable legal fees) attributable to Buyer’s products or representations or warranties concerning same. Neither Party shall have any indemnity obligation, whether by express or implied contract or implied by law, except as stated in Sections 7 and 15.
8. SHIPMENT: Shipment generally will be accomplished FOB Seller’s plant. Notwithstanding this, if the seller prepays the transportation charges, purchaser will be obligated to reimburse seller upon receipt of invoice for the prepaid transportation charges. Any special or abnormal packaging required will be included in the unit price of the item to be delivered or as a separate line item.
9. DELIVERY; TITLE AND RISK OF LOSS: Delivery of the goods shall be Ex Works (Incoterms 2020) Seller factory. Title and risk of loss shall vest in Buyer upon delivery of the goods to a common carrier. Delivery will be accomplished within the time specified on the face of this quotation or if no time is specified within the normal lead time necessary for the seller to deliver the products in question. Anything to the contrary notwithstanding, the seller shall not be liable for any reasonable delay in production or delivery. In the event a delay in production or delivery occurs beyond a reasonable period of time, which delay is occasioned by fire, strikes, civil or military authority, war, hostility, riots, government action, energy crises, the failure of seller’s suppliers to make timely delivery of material or components, or where such delay is occasioned by other causes beyond the control of the seller or without its fault or negligence, then the date or dates for delivery of the equipment shall be extended for a period equal to the time lost by reason of any such delay.
10. SHIP DATE: The ship date stated on an order acknowledgment or otherwise agreed by the parties is Seller’s best approximation of the anticipated ship date and shall not be deemed to represent a fixed or guaranteed ship date. The seller shall not be liable for any losses, costs, damages, charges, or expenses caused directly or indirectly from any delay in shipment of the goods.
11. PAYMENTS: In the event payments are not made in a timely manner seller may either (1) declare buyer’s performance in breach and terminate any order resulting from this quotation, for default; (2) withhold future shipment under any order resulting from this quotation until delinquent payments are made; (3) deliver future shipments under any quotation on a C.O.D. or cash in advance basis even after the delinquency in payment plus applicable storage charges, or inventory carrying charges; if any or ( 4) combine any of the above rights and remedies as is practicable and permitted by law. Nothing herein shall waive any other rights and remedies of seller permitted by law or set forth in any order resulting from this quotation and all rights and remedies set forth herein shall be considered cumulative and all other available rights and remedies.
12. MATERIAL SHORTAGES AND ALLOCATIONS: In the event Seller is unable to obtain in a timely manner material sufficient to fulfill all of its orders on hand, the Seller shall have the right as a result of said material shortages to equitably allocate lesser quantities of the products to be delivered to all purchasers on a proportionate basis and the contract price shall be equitably adjusted, taking into consideration, among other things, the reduced quantity of items to be delivered and the increased production costs, if any, to Seller as a result of manufacturing lesser quantities than anticipated.
13. INSPECTION: In the event the products herein are subject to source inspection requirements, the products must be inspected within 48 hours of seller’s notification to buyer. If inspection does not occur within 48 hours, the products will deemed to have been accepted by the buyer. In the event the products do not meet the drawings, designs and/or specifications, the purchaser shall notify the seller of such noncompliance in writing and give the seller a reasonable opportunity to correct any such noncompliance. The purchasers shall be deemed to have accepted any product delivered hereunder and to have waived any such noncompliance in the event a written notification that the products delivered hereunder do not comply with the drawings, designs and or specifications, is not received by the seller within fifteen days after the purchaser takes custody of the products delivered hereunder.
14. INSOLVENCY: Seller may cancel the whole or any part of an order resulting from this quotation in the event of the suspension of purchaser’s business, insolvency of purchaser, the institution, by purchaser or others, of bankruptcy, reorganization, arrangement of liquidation proceedings involving or affecting the purchaser, or any assignment for the benefit of creditors of purchaser or receivership that purchaser places itself in or may be placed in. Such cancellation shall be deemed a cancellation for default of purchaser.
15. PATENT, TRADEMARK AND COPYRIGHT INDEMNITY: Seller shall indemnify Buyer from any and all damages and costs finally awarded for infringement of any United States patent trademark or copyright in any suit by reason of the sale of any product sold to Buyer hereunder where Seller is an infringer with respect to its sale hereunder, and from reasonable expenses incurred by Buyer in defense of such suit if Seller does not undertake the defense thereof, provided that Seller is promptly notified of any such suit and except for suits against the United States Government. Buyer offers Seller full and exclusive control of the defense of such suit when products of Seller only are involved therein and the right to participate in the defense of such suit when products other than those of Seller are also involved therein; except that, this indemnity shall not extend to infringement resulting from Seller’s compliance with Buyer’s designs, processes, or formulas. Seller’s liability for damages hereunder is limited to those computed solely on the value of any product sold to Buyer hereunder. In no event shall Seller be liable for consequential damages or costs applicable thereto. Seller shall also indemnify Buyer’s customers and agents for such infringement, if and to the extent that Buyer has agreed so to indemnify them, but to no greater extent than Seller has indemnified Buyer herein and under the same conditions set forth herein. The above is in lieu of any other indemnity or warranty express or implied, with respect to patent trademarks or copyrights.
16. SPECIAL TOOLING: Title to dies, tools, jigs, fixtures, patterns, or any other type of special tooling shall remain vested in the seller, whether or not paid for or amortized over the products manufactured hereunder to the purchaser.
17. NON-RECURRING CHARGES: Non-recurring engineering and tooling charges shall be subject to an upward adjustment limited to 10% to be determined after the actual expense is incurred.
18. TAXES: Unless otherwise specifically designated on the face page of this quotation, the prices quoted herein do not include sums necessary to cover any taxes or duties including but not limited to Federal, State, Municipal excise, sales or use taxes or import duties upon the production, sale, distribution, or delivery of equipment or furnishing of services hereunder. Any taxes or duties that are due and owing hereunder shall be paid by the purchaser. Accordingly, the seller reserves the right to revise its quotation after the execution of this contract between the parties to include any and all taxes or duties that may become due hereunder and seller may invoice purchaser for said additional amount. This clause shall survive the acceptance and complete performance of any purchase order resulting from this quotation by the parties herein.
19. SET-OFF: All monies owned under any purchase order resulting from this quotation shall be due under the terms of this agreement and the purchaser is prohibited from setting off said sum due the seller under this purchase order from sums, whether liquidated or not, that are or may be due the purchaser which arise out of a different transaction with the seller, its divisions, subsidiaries, or affiliates.
20. SURCHARGE ADJUSTMENTS: Seller reserves the right to invoice the buyer in the form of a surcharge for abnormal changes in market conditions for precious metals (i.e., gold, silver, rhodium), raw material allocations, fuel charges or any other extraordinary market condition that can be reasonably associated to the purchased items.
21. SERVICEABILITY: If any provision of this quotation is in violation of any Federal, State, or local statute or regulations, or is illegal for any reason, said provision shall be self-deleted without affecting the validity of the remaining provisions.
22. APPLICABLE LAW: This order (or quote) is subject to the laws and regulations applicable in the state of New York, U.S.A.
23. NON-CANCELLABLE AND NON-RETURNABLE: Unless otherwise expressly agreed to in writing by Seller, all items purchased shall be considered Non-cancellable and Non-returnable (NCNR).
24. INTELLECTUAL PROPERTY OWNERSHIP: “Intellectual Property” means any inventions, technological innovations, discoveries, designs, formulas, know-how, business methods, computer software, ideas, creations, writing, lectures, illustrations, photographs, scientific and mathematical models, improvements to such items, and all recorded material defining, describing, or illustrating such items, whether in hard copy or electronic form, and all registered or unregistered rights in such items, including but not limited to, patents, trademarks, service marks, trade secrets and copyrights. “Background Intellectual Property” means all Intellectual Property (a) existing prior to the effective date of this Agreement or prior to the date Buyer and Seller began any technical cooperation relating to the goods or services contracted, whichever is earlier, or (b) acquired or developed after such date and outside the scope of this Agreement. “Foreground Intellectual Property” means all Intellectual Property except Background Intellectual Property. Each Party retains ownership of its Background Intellectual Property. Each Party owns all Foreground Intellectual Property created by such Party without input from the other Party. Any Foreground Intellectual Property created with input from the other Party (“Joint Foreground Intellectual Property”) is owned by Seller. Buyer hereby irrevocably transfers, conveys and assigns all of Buyer’s right, title and interest in such Joint Foreground Intellectual Property to Seller. Buyer will cooperate (and cause its employees to cooperate) in executing any documents or taking any other actions necessary or convenient to perfect Seller’s rights in such Joint Foreground Intellectual Property. Seller grants no rights or licenses to its Background or Foreground Intellectual Property, except that Seller grants Buyer the right to offer for sale and sell goods Buyer has purchased from Seller and the right for Buyer and its customers to use such goods. For the avoidance of doubt, the foregoing license does not include any rights to make or have made goods or services, procure goods or services from sources other than Seller, or otherwise use Seller’s Background or Foreground Intellectual Property for any other purpose.
25. CONFIDENTIALITY: All non-public, confidential, or proprietary information of Seller, including but not limited to trade secrets, Intellectual Property, business information, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates, that is disclosed by or on behalf of Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with these Terms (“Confidential Information”) is strictly confidential, is provided solely for the use of performing these Terms, and may not be disclosed to any person, corporate division or entity, or copied, unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer will promptly return all Confidential Information and any copies thereof. Seller will be entitled to injunctive relief for any violation of this provision, without having to post bond or establish the insufficiency of a remedy at law. This provision does not apply to information that is: (a) in the public domain, through no fault of Buyer, at or subsequent to the time such Confidential Information was disclosed to Buyer by Seller; (b) rightfully known by Buyer free of any obligation of confidence at the time of disclosure to Buyer by Seller, as evidenced by Buyer’s written records; or (c) rightfully obtained by Buyer from a third party without similar restriction from such party and the disclosure of which from such third party does not constitute a violation of an obligation by such third party to Seller, each as evidenced by Buyer’s written records.