STANDARD TERMS AND CONDITIONS OF SALE
These standard Terms and Conditions of sale are in addition to the Mutual Non-Disclosure Agreement (MNDA) the only valid Agreement by and between Elmatica and all subsidiaries and the purchasing party (the “Customer”) for Products and Services, unless these entities enter or have entered into another agreement (Frame Agreement) regarding the purchase and license of Elmatica Products and or Services. A Frame Agreement is only valid for purchase orders after signature from all relevant parties, from Elmatica these are the CTO, CPO, COO or CEO. This Agreement consists of this document
The terms and conditions of this Agreement apply to the purchase of Elmatica products (the “Products”) and services (the “Services”). This Agreement shall be effective (“Effective Date”) upon the electronic acceptance, click-accept, or, if signed in hard copy, the date of last signature, or in the absence of any of the foregoing, this Agreement shall be effective from the date an order is placed by the Customer.
2. Purchase Orders
The Customer shall purchase Products and Services by issuing a purchase order, signed, if requested by Elmatica, or (in the case of electronic transmission) sent by its authorised representative, indicating specific Products and Services, quantity, price, total purchase price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and any other special instructions (collectively a “Purchase Order”). Prices for Products and Services shall be set forth as a valid price quotation, submitted by Elmatica to Customer for such Products and Services. The Customer shall receive an order confirmation within 2 working days, after technical and/or other uncertainties are resolved.
No terms, provisions or conditions of any purchase order, invoice or other business form or written authorisation used by either party will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of either party to object to such terms, provisions, or conditions. Unless otherwise mutually agreed in writing, the terms of this Agreement shall govern the purchase by Customer of additional Products and Services after the Effective Date.
Lead time is calculated based on working days and each week is comprised of 5 working days.
The quoted price is valid for three calendar months or according to the specification of the written quotation. It is the Customers responsibility to examine the specification to ensure the specification are in accordance with the sent instructions and files.
Due to the unprecedented global situation with a severe lack of materials for Printed Circuits, the following condition will affect all current and future orders. Placed and confirmed orders can be subject to a price increase and the Customer will minimum be informed of any price increase 10 working days before the order is launched for production. The Customer has the right to cancel the order at no expense until 5 working days after receiving the price increase information. If an order cancelation is not received in writing by the Customer during these 5 days, the order will be produced and delivered according with the new price communicated by Elmatica.
3. Delivery and Return Management conditions
Orders can only be cancelled without charge until X days before the confirmed delivery time where X is 1,5 times the quoted lead time with a minimum of 21 days. The Customer is obliged to pay for the following costs, if it is cancelled after this period.
- production processes
- material costs
- Non Recurring Expenses (NRE)
- and a termination fee of 10 % of the total order value
Elmatica reserves the right to deliver and invoice the ordered quantity or a plus / minus of 10 % of the ordered quantity up to 7 working days prior to the agreed delivery date. If a consecutive order has been placed, Elmatica will automatically add the number of incomplete boards to the next order. Elmatica reserves the right to automatically cancel an order for incomplete boards (Rest order), if Elmatica has not delivered the total ordered quantity.
Orders delivered with TRAIN transportation will be delivered and invoiced with a quantity of + 10 % and - 10 % with the incoterm DAP. Elmatica is not liable for any additional transportation expenses due to unforeseen events of any kind. If the customer request PCBs designated to be sent by TRAIN to be shipped by AIR, then the cost in its entierty will be according to normal air freight prices from Elmatica.
One can maximum reschedule an order 2 times
One must minimum reschedule an order for 7 days in time, related to the accepted delivery date
One can not reschedule orders closer than 14 days prior to delivery
One can not reschedule or “pull in” orders with special material, solder mask or TRAIN transport
Orders are delivered in accordance with the Incoterm stated on the originated quote. With «Incoterm» we reference the Incoterms® 2010 rules stated by the International Chamber of Commerce.
If the Customer request a new Incoterm from the original offer a new freight/handling price will be applicable.
Products can only be returned after Elmatica has approved and issued a Return Management Approval (RMA), the product shall be returned in the same packaging conditions as they were received.
Determining delivery performance is calculated based on the accepted delivery data by Elmatica and not the completion of the original ordered quantity.
4. Consulting Product
Elmatica reserves the right to invoice 250 USD per hour for consulting investigated by the Customer in relation to the development of a product. An hourly rate is calculated for advice in relation to consulting aspects as Stack up, Gerber analysis, Design for manufacture, Material selection, Executive sourcing, Feasibility studies and other consulting products.
All billable consulting hours will automatically be credited, if an order for the product in relation to the consulting work is placed at Elmatica. The price should be in the range of +- 10% of the market price.
Tooling for an order is not afflicted or relevant in relation to consulting work.
All payments will be made in the currency and at the due date stated on the invoice, defaulting to net thirty (30) days from the date of invoice. If payment is more than thirty (30) days late, Elmatica may, without limiting any remedies available to Elmatica, terminate this Agreement or suspend performance until payment is made current. All prices are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale of the Product, which will be invoiced to and paid by the Customer. For any renewal term, the terms of this Agreement will govern and all fees shall be payable within thirty (30) days of the invoice date. All invoices must be paid on time and in full irrespectively of any warranty case. Each party is only liable for the financial fee of payments in their respective country. The invoice shall be paid in full irrespectively of any fees as e.g. clearing houses (banks) at the customers sole expense, the invoice amount shall enter the final account of the supplier in full.
The invoice is sent when the product is shipped from the manufacturer due to Customs and VAT handling. If the Customer receives an official registered complaint on its Company, Elmatica reserves the right to immediately ask for prepayment of all ordered goods. Late payment will incur a 2% interest charge per month. Elmatica reserves the legal rights to the delivered products, until the payment is paid in full with interest.
An exchange rate will be stated on the offer to the purchasing party, if Elmatica purchase and sell a Product or Service in two different currencies. Any fluctuations of currency from offer to the time of invoicing that exceeds 2% negative will be invoiced.
- USD and EURO. Offered exchange rate 1,31 in offer 20.08.2014 at price X
- Product ordered 01.09.2014 and invoiced when the product leaves the manufacturer 20.09.2014.
- Exchange rate at this time is 1,25 (USD/EURO)
- Calculation will hence be (1,31-1,25 = 6) / 1,31 = 4,58 % negative development
- Price will then be: X * 4,58 = New price
Claims. If a Claim is made or appears likely, it must be raised within 10 days of delivery or discovery to Elmatica. The Customer agrees to permit Elmatica to replace or modify the Product with one that is at least functionally equivalent. If Elmatica determines that none of those alternatives is reasonably available, then Customer will return the Product and Elmatica will credit the equivalent value.
Exclusions. Elmatica has no obligation for any Claim based on: (i) compliance with any designs, specifications, or instructions provided by Customer or a third party on Customer’s behalf; (ii) modification of a received Product by Customer or a third party; (iii) the amount or duration of use which Customer makes of the Product, revenue earned by Customer from services it provides that use the Product, or services offered by Customer to external or internal customers; or (iv) combination, operation, or use of a Product with non-Elmatica products, software or business processes.
Warranty. Elmatica delivers its Products according to the specification of the order and/or IPC A600 class 2 acceptability standard. Failures caused by improper handling or faulty storage after delivery will not be addressed. Elmatica cannot be held responsible for defects that appear 6 months after the marked production date on the product, or 12 months for products with HASL, LFHASL and ENIG surface treatment.
The foregoing warranty will not apply if the Product (a) has been altered, except by Elmatica, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Elmatica, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, (d) is sold; or (e) produced after a potential warranty case has been identified.
If during the Warranty Period: (i) Elmatica is notified promptly in writing upon discovery of any defect in the Product, including a detailed description of such alleged defect, (ii) such Product is returned, transportation charges prepaid, to Elmatica’s designated manufacturing facility in accordance with Elmatica’s then-current return procedures, as set forth by Elmatica from time to time, and (iii) Elmatica’s inspections and tests determine that the Product is indeed defective and has not been subjected to any of the conditions set forth in subsection (b) above, then, as Customer’s sole remedy and Elmatica’s sole obligation under the foregoing warranty, Elmatica will, at Elmatica’s option, repair or replace from the same supplier without charge the defective Product or refund the price of the product.
Except as specified in this warranty, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non infringement, satisfactory quality or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law. To the extent an implied warranty cannot be excluded, such warranty is limited in duration to the warranty period. All support and maintenance services are provided “as is”.
8. Limitation of Liability
In no event shall Elmatica or its suppliers be liable for any incidental, special, indirect or consequential damages, lost revenue, lost profits, or lost or damaged data, whether arising in contract (including negligence) or otherwise, even if Elmatica or its suppliers have been informed of the possibility thereof. Notwithstanding anything else herein, all and any liability for Elmatica and its suppliers for claims arising under this agreement or otherwise shall be limited to the purchasing cost of each individual confirmed faulty Printed Circuit Board, by Elmatica.
9. Compliance with all Applicable Laws; Export Control
Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures including requirements applicable to the use of Products under the laws and regulations, of any government where the Products are to be used (collectively "Applicable Laws"). Customer will indemnify and hold harmless Elmatica, for any violation or alleged violation of any Applicable Laws.
Each party agrees to refrain from using the other party’s Confidential Information (as defined below) except as contemplated herein and preserve and protect the confidentiality of the other party’s Confidential Information using the same measures that such party uses to protect its own confidential information, which in no event will be less than commercially reasonable measures. Customer shall not disclose to any third party the results of any evaluation or testing of the Product by Customer. Neither party shall disclose any of the terms of this Agreement to any third party without the prior written consent of the other party, provided that either party may disclose Confidential Information, and the terms or conditions of this Agreement, to such party’s agents, attorneys and other representatives or any court of competent jurisdiction. “Confidential Information” means all non-public information that is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential.
11. Software and Intellectual Property Rights
Elmatica hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use the software contained on the Products (the “Software”) in object code format solely for the internal business purposes of Customer. Except as otherwise agreed by the parties hereto in writing, Customer will not use the Software as a service provider or as part of a product or service offering to third parties without Elmatica’s prior written consent.
Elmatica has global copyright for all recommendations, consulting advice, drawings, stack up and any type of original work developed exclusively for use and distribution by Elmatica for any third party. If a third party decides to use the original work from Elmatica it can pay an hourly rate stipulated by Elmatica for the consulting service or purchase the physical object from Elmatica.
13. Terms and Termination
The terms of this Agreement shall commence on the Effective Date and continue thereafter for a period of one year, unless sooner terminated as set forth below. The terms of this Agreement shall be automatically renewed thereafter, for successive one (1) year periods, unless at least forty-five (45) days prior to the date of any such renewal, either party shall have given written notice to the other of its intention that these terms shall not be renewed. If either party breaches a material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party will have the right to terminate this Agreement, including all licenses granted to Customer hereunder, at any time. Customer’s breach of a payment obligation constitutes a default the date the payment is due and Elmatica will have the right to terminate this Agreement immediately. All accrued obligations, shall survive the termination of this Agreement.
14. Assignment; Entire Agreement Modifications
Neither party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other; such consent not to be unreasonable withheld or delayed. This Agreement supersedes all prior communications, transactions, and understandings whether oral or written, and, together with any applicable click-through agreements, constitutes the sole and entire agreement between the parties pertaining the referenced quotations or purchase orders. No modification, addition or deletion, or waiver of any of the terms and conditions of this Agreement will be binding on either party unless made in a non-preprinted agreement clearly understood by both parties to be a modification or waiver, and signed by a duly authorized representative of each party.
15. Governing law
This Agreement will be governed by the laws of Norway, any dispute, which cannot be solved by mutual negotiation shall be settled under Norwegian law. Alternatively, if agreed upon by all parties an applicable law in another country may be used to resolve the dispute.
If any portion of this Agreement is held invalid, the parties agree that such invalidity will not affect the validity of the remaining parts of this Agreement.
17. Force Majeure
Neither party shall be liable for any delay or failure in performance or obligations due to events outside the defaulting party´s reasonable control under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, terrorism, lockout, epidemic, destruction of production facilities, riot, actions of government entities, insurrection, material unavailability, or any other cause beyond the reasonable control of the Party invoking this section, and if such Party shall have used its commercially reasonable efforts to mitigate its effects, such Party shall give prompt written notice to the other, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Regardless of the excuse of Force Majeure, if a Party is not able to perform within ninety calendar days after such event, the other may terminate this Agreement. This does not apply to outstanding invoices.
Revision 16 - 18.12.2017