Definitions: For the purposes of these Terms and Conditions of Sale and Supply (“Conditions”): “Buyer” means the person, firm or company, which places an order for purchase of Products as identified in any such order or Proposal as the case may be. “Contract” means the agreement between the Supplier and the Buyer arising as a result of the Buyer’s submission of an order (“PO”) for the Supplier’s Products and Supplier’s written acceptance. “Products” means goods and services supplied under any Contract. “Proposal” means a proposal document, quote or Statement of Work (SOW) describing Products be provided to the Buyer subject to these Conditions. “Supplier” means Sonion A/S or any of its affiliates as named in any quotation or Proposal.
2. Basis of Sale: THESE CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS, WHICH APPEAR IN BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN BUYER’S ORDER. No term or condition of the Buyer’s order additional to or different from these Conditions shall become part of any Contract unless explicitly agreed to in writing by the Supplier. Receipt by the Buyer of any products delivered by the Supplier, receipt by the Buyer of any services performed by the Supplier or payment by the Buyer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Conditions. The Supplier’s failure to object to any provision contained in any communication from the Buyer shall not be construed as a waiver of these Conditions or as an acceptance of any such provision.
3. Quotations: Prices, specifications and dates for delivery referenced in the Supplier’s quotations are for information purposes only and shall not be binding on the Supplier until all technical requirements have been agreed and the Supplier has accepted the Buyer’s order. Quotations terminate if not accepted by the Buyer within 30 calendar days from the Buyer’s receipt of the quotation in question.
4. Orders: By submitting an order to the Supplier, the Buyer agrees to be subject to these Conditions in their entirety, cf. Section 2. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a quotation by the Supplier, shall be binding upon the Supplier until accepted in writing by the Supplier.
5. Prices, Taxes and VAT: The prices for Products shall be the price quoted by the Supplier to the Buyer, or as otherwise agreed between the parties in writing. Prices do not include taxes, transport charges, insurance, exports and/or import charges and VAT, including duties and levies, which taxes may, in the Supplier’s discretion, be added by the Supplier to the sales price or billed separately and which taxes shall be paid by the Buyer.
6. Shipment and Delivery: 6.1 The Supplier shall deliver the Products EX WORKS (EXW INCOTERMS 2010) Supplier. Any dates quoted by the Supplier for delivery of Products are approximate only and the Supplier shall not be liable for any delay in delivery of Products howsoever caused. 6.2 The Supplier reserves the right to make delivery by installments and to tender a separate invoice in respect of each installment. When delivery is to be by installments or the Supplier exercises its right to deliver by installments a delay in the delivery of in any one or more installments or the delivery of a nonconforming delivery for whatever reason will not entitle the Buyer to damages or to treat the Contract in whole or in part as repudiated.
7. Risk and the Passing of Property:
7.1 Risk of loss and damage to the Products shall pass to the Buyer when the Products are delivered in accordance with Section 6. Any claims for loss, damage or misdelivery shall be filed with the carrier (if any) and notified to the Supplier. All products shall be deemed finally inspected and accepted within ten days after delivery unless notice of rejection is given in writing to the Supplier within such period.
7.2 THE SUPPLIER RESERVES THE RIGHT OF OWNERSHIP TO ANY DELIVERY UNTIL THE PURCHASE PRICE HAS BEEN PAID IN FULL.
8. Terms of Payment:
8.1 Each shipment shall be a separate transaction and the Buyer will be invoiced on delivery. Unless otherwise stated in the Supplier’s invoice, terms of payment shall be net thirty (30) days from date of invoice.
8.2 All amounts due under a Contract shall be paid in full by the Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever.
8.3 If the Buyer fails to pay any payment due hereunder when due, the Supplier shall (at its option) be entitled: (i) to treat the Contract repudiated by the Buyer or (ii) to affirm the Contract. Furthermore, the Supplier may suspend or cancel further delivery of Products or any part thereof under that Contract or any other Contract and claim damages and/or receive reasonable cancellation fees and recover, in addition to the payment, interest thereon at the rate of one percent (1.0%) per month.
9. Force Majeure: The Supplier shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any event beyond the control of the Supplier, including but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, floods, storm, shortage of labor, fuel, raw material or machinery or technical failure where the Supplier has exercised ordinary care in the prevention thereof. If any such contingency occurs, the Supplier may allocate production and deliveries among the Supplier’s customers.
10. Products: The Supplier may modify specifications provided the modifications do not adversely affect the performance of the Products to be supplied under the Contract. In addition, the Supplier may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or non-availability of materials from suppliers. All descriptions, illustrations and any other information relating to the Products contained in the Supplier’s catalogues, brochures, price lists, advertising material and any sales or other particulars or literature are made by way of general description, are approximate only and for the general guidance and information of the Buyer. They shall not constitute warranties or representations by the Supplier nor shall they form part of any Contract.
11. Software: The Supplier shall have and retain title and full ownership of all software, firmware and documentation thereof supplied by the Supplier for use with the Product, and of all copies thereof made by the Buyer (collectively “Software”). The Supplier grants the Buyer a non-exclusive and nontransferable license to use such software solely for use with the Products.
12. Intellectual Property Rights:
12.1 Notwithstanding delivery of and the passing of title in any Products and subject to Section 11 and 12.3, nothing in these Conditions or any Contract shall have the effect of granting or transferring to, or vesting in, the Buyer any intellectual property rights in or to any Products.
12.2 The Buyer acknowledges and agrees that all property, copyright and other intellectual property rights in any work or tangible deliverable item arising from or created, produced or developed by the Supplier under or in the course of provision of any services or delivery of Products (the “Works”), including without limitations all right title and interest in and to all documents, data, drawings, specifications, articles, sketches, drawings, reports, inventions, improvements, modifications, discoveries, tools, scripts and other items relating thereto shall immediately upon creation or performance vest in and shall be and remain the sole and exclusive property of the Supplier and the Buyer shall acquire no right, title or interest in or to the same except as expressly stated in these Conditions.
12.3 The Supplier grants to the Buyer a non-exclusive, non-transferable licence to use such of the Works as are necessary, and to the extent necessary, for the Buyer to obtain and utilise the intended benefit of the Products.
12.4 If any claim is made against the Buyer that the Products infringe any patent, copyright or other rights of any third party, the Supplier shall indemnify the Buyer against all losses, damages, costs and expenses awarded against, or incurred by the Buyer in settlement of the claim provided that: (i) the Supplier is given full control of any proceedings or negotiations in connection with any such claim; (ii) the Buyer shall give the Supplier all reasonable assistance for the purposes of any such proceedings or negotiations; (iii) the Supplier shall be entitled to the benefit of all damages and costs (if any) awarded in favour of the Buyer; and the Supplier may, at its expense and option, either (a) procure for the Buyer the right to continue using said Product, (b) replace the said Product with a suitable non-infringing product, (c) suitably modify said Product, or (d) refund the purchase price of said Product.
12.5 The Supplier shall have no obligation or liability under Section 12.4 insofar as the infringement arises from: (i) any additions or modifications made to the Products in question, otherwise than by the Supplier or with its prior written consent; (ii) any information provided by the Buyer to the Supplier including without limitation any specification; (iii) performance by the Supplier of any work required to any Products, or performance of any services, in compliance with the Buyer’s requirements or specification; (iv) a combination with or an addition to equipment not manufactured or developed by the Supplier; or (v) the use of Products beyond that scope established by the Supplier or approved in writing by the Supplier.
12.6 THIS SECTION 12 STATES THE ENTIRE LIABILITY OF THE SUPPLIER AND THE EXCLUSIVE REMEDY OF THE BUYER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BELONGING TO A THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF ANY CONTRACT.
13.1 The Supplier warrants that all Products is free from defects in material and workmanship under normal use for a period of one year from the date of delivery to the Buyer. The Buyer shall be responsible for determining that the Product is suitable for the Buyer’s use and that such use complies with any applicable law.
13.2 The Buyer shall notify the Supplier in writing of any claimed defect in the Product immediately upon discovery and any such Product shall be returned at the Buyer’s risk to the Supplier, transportation charges prepaid, no later one year from date of delivery.
13.3 The Supplier shall not be responsible for any breach in respect of Products supplied if: (i) the Buyer makes further use of such Products after giving the notice required in Section 13.1; (ii) the defect or failure arises from the Buyer’s own fault; (iii) the defect arises from any drawing, design or specification supplied by the Buyer or from other materials or other property supplied by the Buyer or from failure to supply such information or property, or from any parts or items that have not been completely manufactured by the Supplier; and (iv) the defect arises out of the use of the Products in conjunction with products or materials not reasonably contemplated by the Supplier.
13.4 If a Product is determined to be defective, the Supplier shall at its option (i) repair or replace such defective Product, and the Supplier shall have reasonable time to make such repairs or to replace such Product or to (ii) grant the Buyer a fair proportionate price reduction for the delivery in question. Any repair or replacement of Product shall not extend the period of one-year notice of defect.
13.5 The Supplier shall not be liable for damage to property caused by a defect in a Product, including damage to products produced by the Buyer or to products of which the Product form a part, or for damage to property, which the Buyer’s products cause due to a defect in the Product. To the extent the Supplier incurs liability towards a third party, the Buyer shall hold the Supplier harmless to the same extent, as the Supplier’s liability is limited according to this Section 13. In case of personal injury caused by the Product and in case of damage to property usually intended for non-commercial use, the provisions of the Danish Product Liability Act shall apply.
13.6 Any claim arising out of or in connection with a Contract must be commenced against the Supplier within one (1) year of (i) delivery of the Products, or (ii) provision of the Services (as applicable), giving rise to the claim, and the Supplier shall have no liability to the Buyer under or in connection with any claim commenced after such time.
13.7 THE SUPPLIER’S MAXIMUM AGGREGATE LIABILITY INCLUDING THE REMEDIES GRANTED IN SECTION 13.4 UNDER OR IN CONNECTION WITH ANY CONTRACT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT IN QUESTION, OR IN RESPECT OF SERVICES THE AMOUNT PAYABLE BY THE BUYER UNDER THAT CONTRACT AND, IN RESPECT OF SERVICES CONTINUING BEYOND ONE YEAR, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAYABLE BY THE BUYER IN RESPECT OF SERVICES THAT YEAR. IN NO EVENT SHALL THE SUPPLIER BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, INCLUDING CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO BUYER OR SUPPLIER, SAVE THAT NOTHING IN THESE CONDITIONS SHALL EXCLUDE OR LIMIT THE SUPPLIER’S LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY THE SUPPLIER’S NEGLIGENCE OR ANY OTHER LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
14. Confidential Information: Each party undertakes to keep confidential, not use for its own purposes and not without the prior written consent of the other party disclose to any third party, any information of a confidential nature belonging or relating to the other party which may become known to it unless such information is or becomes public knowledge (other than by breach of this Section) or is required to be disclosed by order of a competent authority.
15. Rescheduling and Cancellation: Orders accepted by the Supplier may be cancelled or rescheduled by the Buyer only with the written consent of the Supplier and upon payment of the Supplier’s cancellation or rescheduling charges. The Supplier shall have the right without penalty or payment to cancel any order accepted (i) if the Buyer fails to make any payment when due to the Supplier under the Contract or any other contract with the Supplier, (ii) if any act or omission of the Buyer delays the Supplier’s performance, (iii) if the Buyer violates any of these Conditions, or (iv) if the Buyer’s credit becomes impaired; and in the event of such cancellation the Supplier shall be entitled to receive reimbursement for its reasonable and proper cancellation charges.
16. Insolvency of the Buyer: If: (i) the Buyer suspends its payments makes any composition or arrangement with its creditors enters into bankruptcy proceedings or undergoes any analogous act or proceedings under an applicable foreign law; then, without prejudice to any other right or remedy available to the Supplier, the Supplier may treat any Contract as repudiated and/or withhold any further supply of Products without any liability to the Buyer and, if any Products have been supplied but not paid for, the price or fees shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
17. Non-Waiver: No waiver of any breach of these Conditions shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar provision or a modification of the Contract.
18. Applicable Law and Actions to Recover Damages: 18.1 The Contract shall be governed by and construed in accordance with Danish law (the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded) and without regard to its conflict of laws rules or principles. All disputes arising in connection with the Contract shall be settled by arbitration administrated by the Danish Institute of Arbitration in accordance with the Rules of Arbitration Procedure adopted by the Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The place of arbitration shall be Copenhagen. The language of the arbitration shall be English. Any decision of the tribunal established pursuant to the rules for the Danish Institute of Arbitration is final and binding for the Parties. 18.2 If any provision of these Conditions is held to be unenforceable, such holding shall not affect the enforceability of any other provision. Prior to commencement of any legal proceedings, the Buyer and the Supplier shall meet at a senior level to attempt to resolve differences. Nothing in this Section shall prevent any party from having recourse to a court of competent jurisdiction for the sole purpose of seeking a preliminary injunction or such other provisional judicial relief without provision of security.
19. Notices: All notices given under these Conditions or a Contract shall be in writing.
Date: July 2019