Eltek Terms and Conditions
Eltek terms and conditions are subject to change without notice. These are the current terms of some selected countries in the Eltek universe.
Eltek General Purchasing Conditions
Revision: 6 Date: 26 May 2016
1.1 "The Agreement" means Buyer's purchase order, these General Conditions of Purchase, technical documentation and other documents made part of this Agreement by special reference. In case of any contradiction, the documents of the Agreement shall apply in the order of precedence as stated above. Any standard terms or conditions of the Seller are explicitly not a part of the Agreement.
1.2 "The Price" means the amount to be paid to Seller for the Goods in accordance with the purchase order and variation orders made in accordance with clause 10.
1.3 "The Goods" means services, documentation, equipment, material and other items to be delivered to Buyer by Seller in accordance with the Agreement.
1.4 "Buyer" means Eltek AS or any Eltek Group companies where the majority shareholding is ELTEK AS.
1.5 "Seller" means the company or the individual the purchase order is issued to.
2 PURCHASE ORDER - confirmation/agreement
2.1 Buyer's purchase order shall immediately, or at the latest within 48 hours, be confirmed by Seller by returning it accepted and signed. If Seller fails to return the purchase order confirmation within 48 hours, Buyer's purchase order shall be deemed to have been accepted without comments. Buyer is entitled to cancel the purchase order if the purchase order confirmation is not in accordance with the purchase order or if not received within 48 hours.
2.2 The purchase order confirmation shall always state the Price, and the time and place of delivery. Qualifications made by Seller when confirming the purchase order are not part of the Agreement, unless accepted by Buyer in writing.
2.3 This Agreement contains the entire agreement between the parties on the subject matter of this Agreement, and supersedes all representations, undertakings and agreements previously made between the parties with respect to the subject matter of this Agreement. This General Purchasing Agreement supersedes any general conditions of purchase/sale and other standard conditions. The Appendices shall be an integral part of this General Purchasing Agreement.
2.4 Seller shall not have the right to refuse to supply the Products ordered by Buyer in accordance with the purchase volumes indicated in Buyer's estimates or other planning tools. In case no estimate is given Seller shall take its best efforts to accept all Purchase Orders. In case such estimate of needs of the Products by the Buyer is issued by the Buyer, it is not binding upon the Buyer and shall serve solely for the information purposes of the Seller
3.1 The Goods shall be delivered, properly packed and marked, at the agreed place and time of delivery. Unless otherwise expressly stated in the Agreement, delivery shall take place in accordance with the provisions of INCOTERMS 2000. Unless otherwise agreed, delivery shall be deemed to have taken place when the Goods are handed (or services performed) over to Buyer at Buyer's premises. Unless otherwise agreed, risk of damage to the goods passes upon delivery.
3.2 If Buyer is responsible for transportation, Seller shall in good time prior to dispatch, request dispatch instructions from Buyer. If Seller is responsible for transportation, he shall, in due time, send an advice note, advising of dispatch so that Buyer may make preparations for receipt of the Goods.
3.3 If Seller has reason to assume that any part of the delivery may be delayed, he shall notify Buyer promptly thereof. Seller shall, without undue delay, inform Buyer in writing about the cause of the delay, the estimated effect on the agreed time of delivery and proposed remedial actions to avoid or reduce the delay.
If Seller's remedial action to avoid or reduce the delay is deemed to be inadequate, Buyer may demand Seller to take effect measures considered necessary. The costs of such measures shall be borne by Seller. If the delay is caused by circumstances for which Buyer is responsible, Buyer may only demand that such measures are put into effect in accordance with the provisions given in clause 10.
3.4 In no circumstances shall the Seller delay or suspend the delivery of goods for any reason whatsoever to the Buyer for which payment has not been received from Buyer.
4 DOCUMENTATION, MARKING AND SERVICE
4.1 Packing lists, advice notes, invoices and other documentation shall only relate to one purchase order and shall be duly marked with purchase order number and part number(s) and other specifications stated in the purchase order. The documentation shall be completed so that each item corresponds to the purchase order with respect to item number, part number, Goods description and specifications.
4.2 Seller shall mark the Goods with Buyer part number and in accordance with packing lists and instructions stated in the purchase order. Seller shall also mark the Goods in conformity with the applicable EU directives and any national rules relating to marking. If CE marking is required, Seller shall attach a manufacturer's declaration of conformity or a certificate of conformity.
4.3 Seller shall print the invoice number of the shipment on the packing list.
4.4 If requested by Buyer, Buyer or any third party specified by Buyer shall be supplied with a certificate of origin and custom invoice. Costs incurred by the Buyer due to lack of certificate of origin or custom invoices shall be charged to Seller and deducted the Price.
4.5 Any documentation which does not comply with the conditions of Article 4 may be returned by Buyer. Any certificates, drawings and other documents specified in the purchase order shall be delivered together with the Goods. Delivery of documentation is considered to be part of the Goods and invoices will not be paid until it has been received.
4.6 Documents submitted to Buyer for examination and approval will not relieve the Supplier from his obligation to execute the purchase order according to the Agreement.
4.7 Product availability and End of Life (EOL), if the Seller decides to phase out any of the products covered by this agreement the Seller commits to provide a list of such products minimum 18 months before the products EOL. This EOL list must contain product description; part no. and last time buy information.
4.8 SPARES, The Seller will provide the Buyer a Spares package and support for all products covered within this contract during the volume delivery period and for ten years (10) after the official EOL date described in the article 4.6.
5 QUALITY ASSURANCE AND ENVIRONMENTAL MANAGEMENT
5.1 A quality assurance system according to the ISO 9000 series or a corresponding system shall have been established and implemented by Seller.
5.2 Buyer has signed the ICC charter on sustainable development and has an environmental management system according to ISO 14001. This also makes demands on Seller for a continuous improvement of the environment. Seller is expected, should he fail to have a corresponding system, to show a conscious attitude to environmental management by complying with requirements for the environment and arranging for continuous improvements in his operations. Seller shall, in the same way as Buyer, ensure compliance with recommendations from concerned parties.
5.3 Buyer reserves the right to approve and carry out audits of the quality assurance and environmental management system of Seller or any sub-contractors. Seller shall provide any necessary assistance in this respect.
5.4 The regulations for ESD Protection must be complied with when handling and delivering electronic components and equipment. If not complied with, Buyer has the right to claim compensations and/or cancel the order.
6 PROPRIETARY RIGHTS
6.1 Unless otherwise agreed, Seller shall mark and keep the Goods, as well as materials and equipment belonging to Buyer stored at the place of production, separate from items belonging to Seller or a third party.
6.2 Seller is not entitled to retain the whole or part of the Goods as security for claims on Buyer, notwithstanding any dispute in respect of Seller's compensation.
7 PRICE, PAYMENT AND AUDIT
7.1 The Price is fixed and firm and shall not be subject to escalation. The Price(s) are stated in the Appendices hereto unless otherwise agreed. Changes in Price(s) shall be mutually agreed and negotiated in good faith.
7.2 Unless otherwise agreed, payment shall be made not later than 120 days from receipt of a correct invoice. Unless otherwise agreed, invoice shall be issued upon delivery. Buyer is entitled to withhold disputed parts of the invoice.
7.3 Buyer or his representative shall be entitled to audit all documentation concerning reimbursable work. This right lies with Buyer for the duration of the Agreement and for up to 2 years after the expiry of the year in which the Goods were delivered.
8.1 Before delivery, Seller shall search for errors or defects in the Goods and the documentation, and shall notify Buyer without undue delay if errors or defects are identified.
8.2 Buyer and any person authorized by him shall be entitled to perform inspections and tests at Seller's and any sub-contractor's premises as he deems necessary to ensure that the Goods are delivered in accordance with the Agreement. Seller shall provide any assistance necessary in this respect. Likewise Buyer may request the submission of test records, material certificates, calculations etc.
8.3 The inspections and tests mentioned above shall not relieve Seller from any of his obligations under the Agreement. This also applies if Seller sends technical documentation or other documents to Buyer for inspection and possible approval.
9 VARIATION ORDERS
9.1 Buyer is entitled to make any variations to the Goods, or part thereof. Such variations may include increase or reduction of scope of supply, character, quality, nature or design as well as change of delivery time, provided that such variations are within what the parties could reasonably expect when entering into the Agreement. The variation will be formalized by Buyer's issuance of a written variation order. Seller's obligation under this Agreement applies to all variations to the Goods.
9.2 Prior to issuance of a variation order, Seller shall, upon Buyer's request and without delay, prepare and send to Buyer an estimate describing the variation work, and inform about possible effects on Price and delivery time. If Seller does not prepare an estimate as prescribed, Seller has thereby confirmed that the variation does not increase the Price or the delivery time.
9.3 Unless otherwise stated in the Agreement, the effect of the variation order shall be agreed in writing between the parties. The price shall reflect the price level of the original purchase order.
9.4 At the request of Buyer, the variation order shall be implemented without undue delay, irrespective of whether or not the parties have agreed regarding the effect of the variation on the Agreement.
10 RESCHEDULING AND CANCELLATIO
10.1 Rescheduling Window. The Purchase Order is binding for both Parties, unless agreed in writing between both parties before shipment. The Buyer may at any time, by written notice issued at least one (1) working day before shipment of any Products, reschedule the Delivery Dates for such Products to a maximum of ninety (90) calendar days after the original Delivery Date.
10.2 Cancellation Window. The Buyer may at any time, by written notice issued at least one (1) week before shipment of any Products cancel the Delivery Dates for such Products.
11 WARRANTIES AND LIABILITIES
11.1 Warranty period. The Seller guarantees that each and every Product delivered to the Buyer is new, free of defects in the material and components used, and complies with specifications and workmanship, technical and other applicable standards as well as condition under this Agreement. This warranty shall apply for twelve (12) months from date of delivery from the Seller to the Buyer. Costs of returning Products to the Seller in order to replace and/or fixing defects of the defected Product in the warranty period of twelve (12) months are borne by the Seller.
For replacement within the warranty period the Seller will replace or repair the Products at the expense of the Seller and the Seller shall cover all delivery costs, taxes and duties payable for said replacements or component parts delivered to the site / warehouse of the Buyer. The costs include all labor costs and other associated costs of third parties for the repair/replacement to be carried out.
The Costs of returning Products with in the warranty period are borne by the Seller. The Seller will replace or repair the products as defined in this agreement within a reasonable time frame, how ever no event later than within one (1) month from notice of such defect or damage by the Buyer.
For any repair work beyond the twelve (12) months warranty period, the Seller will repair the Products at negotiated price for the Buyer. The Costs of returning Products beyond the warranty period are borne by the Buyer.
11.2 The Product shall be deemed to have defects if it does not meet the criteria set in this Agreement (especially but not limited to the warranties mentioned in previous section) and other applicable technical, product, quality and other applicable specifications which the Product shall have pursuant to or on the basis of this Agreement (e.g. notification of technical standards, etc.).
11.3 If Buyer, due to defective Products, is made responsible by third parties, Seller's liability under this Article 11 is subject to the following limitations:
" The amount of damages under this Article 11 is limited to a value of ten million € (10.000.000. - EURO) per claim.
This agreement does not exclude or limits liability for claims in respect to:
" the Seller's liability under any applicable product liability legislation (including the General product Safety Directive 2001/95/EC)
" Liability for death or personal injury:
o Resulting from the supply or use of any delivered product or
o Resulting from its negligence
" Fraud or fraudulent misrepresentation
" Liability which cannot be excluded by law
" Liability for Data Protection and law Enforcement, Intellectual property rights indemnity and Confidentiality
Seller shall not be liable for any non-performance under or related to this Agreement due to a Force Majeure Event; the right to terminate remains unaffected by this limitation.
11.4 The Buyer may inspect the delivered Products and examine whether they have any defects after the Products are delivered to the place of final destination specified in the Purchase Order. If the Buyer discovers defects in the delivered Products, the Buyer is obliged to notify the Seller of such fact without undue delay from their delivery. If any Product(s) has the defect(s), the Seller has to at Buyer's option:
(i) to supply replacement Product(s) to fully satisfy the given warranties at Seller's sole risk and expense within a reasonable time period specified by the Buyer; or
(ii) to reimburse to Buyer the Price of all such defective Product(s); or
(iii) to repair such defective Product(s) at Seller's sole risk and expense within a reasonable time period specified by the Buyer; or
(iv) to repair the Product(s) or cause the Product(s) to be repaired by any third party at Seller's sole risk and expense.
(v) at Sellers expense purchase product from a third party as a direct replacement of Sellers product.
11.5 Epidemic Failure Warranty - "Epidemic Failure" means that more than 3% of the total installed base of the same type of Products has experienced the same type of failure to conform to the applicable Specifications, and such failure materially affects Product functionality. Seller warrants that the Products will not experience Epidemic Failure for a period equal to two (2) times the length of the applicable Product Warranty Period (Epidemic Failure Warranty). Unless otherwise agreed in writing by the parties, if an Epidemic Failure occurs, upon notice from the Buyer who will instruct the Seller to -
(a) at Seller's expense, remove from the field and place in the buyers storage locations all units of the product under Epidemic Failure Warranty (Covered Products);
(b) refund payments made by buyer for Covered Products;
(c) cancel all invoices for the Product; and,
(d) at Seller's expense, provide a rapid solution until a replacement Product is available.
In addition, the buyer may cancel all outstanding P.O.s, Blanket Orders and Releases for the Products without further obligation.
(e) at Sellers expense purchase product from a third party as a direct replacement of Sellers product.
11.6 Seller shall ensure that it and its suppliers have sufficient insurance (e.g. business interruption and liability insurances) to meet the potential warranty and liability agreed in this contract. Seller shall actively work with its suppliers with risk management. Seller shall use commercially reasonable efforts to safeguard that production of so-called critical components is not located to a single location.
11.7 MTBF, The Seller shall ensure that the MTBF for the products within this contract meet the specifications and requirements in line with the expectations to the market and application and in line with the Buyers requirements.
12.1 Time shall be of the essence in relation to all delivery deadlines. If the Seller fails to meet a first confirmed DELIVERY DATE the Buyer may either claim actual damages or Buyer may claim liquidated damages in the amount of three (3) % of the price of the delayed delivery for each calendar day of delay computed from the DELIVERY DATE without grace period, up to an aggregated payment per individual purchase agreement of twenty-four (24) % of the price of the delayed delivery. Additionally, the Buyer may claim any costs of air transportation of the delayed delivery. Such air transportation shall be arranged by Seller and the cost shall be borne by Seller. After 10 days of delay the Buyer may cancel any PURCHASE ORDER without setting any new time limit or grace period. Such liquidated damages represent a genuine pre-estimate by the PARTIES of the expected loss or damage to ORDERING PARTY and are not intended in any way to operate as a penalty. This should extend to all LATE delivered products and parts.
13.1 Buyer may terminate this Purchasing Agreement for convenience with at least (18) months' prior written notice.
13.2 Buyer may terminate this Purchasing Agreement forthwith in writing if the other Party:
(i) becomes insolvent, is declared bankrupt, suffers other similar proceeding or discontinues its business; or
(ii) is in breach of any of its obligations under this Purchasing Agreement and has failed to remedy such breach within thirty (30) days after having received written notice of such breach and the intention of the notifying Party to terminate this Supply Agreement if the breach is not timely remedied.
In addition to what is mentioned above Buyer has the right to terminate this Agreement in case Seller sells all or substantially all of its assets, merges or consolidates with a third party or suffers a material change of ownership.
13.3 The termination of this Agreement shall survive any termination with regard to Product(s) already delivered under this Agreement.
13.4 The Buyer is entitled to Claim actual damages from the Seller in case where this Seller has breached this Agreement or any provision thereof.
14 FORCE MAJEURE
14.1 Any failure of Buyer or Seller to comply with the terms of this Agreement if such failure is caused by circumstances not directly under the control of the party concerned, including but not limited to, failures resulting from Force Majeure, Acts of God, natural disasters, storm, flood, earthquake, explosion, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, riots, transportation embargoes, boycotts, failures or delays in transportation or the mails, acts of any government, whether national, state, local or otherwise, or any agency thereof, or judicial action, shall be excused for performance continues, provided that the non-performing Party makes a reasonable effort to anticipate the effect of the intervening condition, and promptly performs when said condition ceases to exist.
14.2 To ensure continual supply from the Seller to the Buyer and in the event of Force Majeure the Seller shall provide the Buyer a full business continuity and disaster recovery plan (BR&DRP) which shall include, but not limited to the following:
" Pre-Planning Activities (Project Initiation)
" Vulnerability Assessment and General Definition
" Business Impact Analysis
" Detailed Definition of Requirements
" Plan Development
" Testing Program
" Maintenance Program
" Initial Plan Testing and Plan Implementation
" Planning Scope and Plan Objectives
" Project Organization and Staffing
" Project Control
" Schedule of Deliverables
" Resource Requirements
" Production schedule plan and priorities.
15.1 Seller shall provide and maintain insurance policies covering the liability possibly incurred as a result of the Agreement. In addition, he shall keep the Goods insured until delivery has taken place according to the agreed term of delivery according to INCOTERMS 2000.
If requested, Seller shall submit insurance certificates. Buyer shall be covered by the insurance as additional insured, and Seller's insurance company shall waive its right of subrogation against Buyer.
16.1 Each party shall keep secret all information received from the other party in connection with this Agreement. Buyer shall, nevertheless, be entitled to transfer such information to a third party to the extent necessary in connection with the production, maintenance, modification, use and inspection of the Goods.
16.2 Seller shall not publish information regarding the Agreement without the Buyer's written approval. Such approval shall not be unreasonably withheld. On Buyer's request, Seller shall return all drawings, calculations and other documentation to Buyer.
17 OWNERSHIP OF DOCUMENTATION AND COMPUTER PROGRAMS, INDUSTRIAL PROPERTY RIGHTS
17.1 Any material (including documentation and computer programs) placed at Seller's disposal by Buyer or developed mainly on the basis of such information, is the property of Buyer and shall not be used for other purposes than the execution of the Agreement. On Buyer's request, Seller shall return such documentation and computer programs to Buyer.
17.2 Any inventions made by Seller during the execution of the Agreement shall be the property of Seller. Buyer shall, nevertheless, have the proprietary right to inventions which mainly are based on technical information received by Seller from Buyer. Seller shall notify Buyer of any such invention, and give Buyer the assistance necessary for Buyer to patent the invention. Buyer shall pay to Seller all reasonable expenses incurred by Seller in connection with such patenting.
17.3 Seller shall give Buyer an irrevocable, royalty free, non-exclusive right to use all inventions made by Seller during execution of the Agreement and all inventions in Seller's possession to the extent necessary for the production, operation, maintenance or repair of the Goods.
17.4 Intellectual/industrial property rights to all other results derived pursuant to the Agreement, shall be the sole property of Buyer.
17.5 It is Seller's duty to ensure that there is no conflict between the Goods or its application and the rights of any third party. Seller shall indemnify Buyer from any claims resulting from the infringement of any rights of a third party.
18 EXPORT CONTROLS
18.1 Seller shall comply with any export/re-export regulations in force in Seller's country or the country of origin.
18.2 Seller shall notify Buyer if the Goods are subject to export restrictions and, at the request of Buyer, give a written statement as to which export restrictions apply and whether a (re-)export license is required for the country of destination in question.
18.3 Seller shall indemnify and hold Buyer harmless from any breach of export controls regulations in Seller's country or the country of origin caused by Seller's circumstances or by insufficient information from Seller.
19 HEALTH, SAFETY AND ENVIRONMENT
19.1 Seller shall comply with all applicable rules, regulations and standards regarding health, safety and environment and comply with all requirements from local authorities through all the production phases until the Goods have been delivered. Seller shall comply with requirements from Buyer and Buyer's customer regarding health, safety and environment.
Seller shall hold all necessary permits and comply with all requirements from public authorities for the preservation of the environment at all stages of production up to delivery of the Goods.
20.1 Seller may not use any reference to Buyer in its marketing without the prior written consent of Buyer.
21 ASSIGNMENTS AND SUB-CONTRACTS
21.1 Seller may not assign the Agreement or any part thereof, or conclude any sub-contracts without the prior written consent of Buyer. Limited use of hired manpower, and minor purchases do not require Buyer's consent.
21.2 Buyer may assign, wholly or in part, its rights and obligations under this Agreement to a third party.
22 NORWEGIAN LAW DISPUTES
22.1 This Agreement shall be governed by and interpreted in accordance with Norwegian law.
22.2 Arbitration. Any disputes arising out of or in connection with this Agreement, including the disputes concerning its validity, interpretation or annulment, shall be settled through arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. Arbitration shall take place in Oslo, Norway and shall be conducted in the English language.
All awards may if necessary be enforced by any court having jurisdiction in the same manner as a judgment in such court.
Both Parties agree that all arbitral proceedings conducted under this article shall be kept confidential, and all information, documentation, materials shall be used solely for the purpose of those proceedings.
UK Terms and Conditions of Purchase
1.1 The "BUYER" means Eltek Power (UK) Ltd
1.2 "CONDITIONS" means the Standard Terms and Conditions of Purchase set out in this document and (unless the context otherwise requires) includes any Special Terms and Conditions agreed in writing between the Buyer and the Seller.
1.3 "CONTRACT" means Contract for the Sale and Purchase of the goods and the supply and acquisition of the services.
1.4 "DELIVERY ADDRESS" means that the address stated on the Order.
1.5 "GOODS" means the Goods (including any instalment of the goods or any part of them) described in the Order.
1.6 "ORDER" means the Buyer's Purchase order to which these conditions are annexed.
1.7 "PRICE" means the price of the goods and/or charge for the services.
1.8 "SELLER" means the person so described in the Order.
1.9 "SERVICES" means the services (if any) described in the Order.
1.10 "SPECIFICATION" includes any plans, drawings, data or other information relating to the goods or services.
1.11 "WRITING" includes telex, cable, facsimile transmission and comparable means of communication.
1.12 ANY reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended re-enacted or extended at the relevant time.
1.13 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 BASIS OF AGREEMENT
2.1 The Order constitutes offer by the Buyer to purchase the goods and/or acquire the services subject to these conditions.
2.2 These conditions shall apply to the Contract to the exclusion of any other Terms and Conditions on which any Quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.
2.3 The Order will lapse unless unconditionally accepted by the Seller in writing within seven days of its' date.
2.4 No variation to the Order or these Conditions shall be binding unless agreed in writing between the authorised Representatives of the Buyer and Seller.
3.1 The quantity, quality and description of the goods and the services shall, subject as provided in these Conditions, be specified in the Order and/or in any applicable specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.
3.2 Any Specification supplied by the Buyer to the Seller or specifically produced by the Seller for the Buyer in connection with the Contract together with the copyright, design rights or any other intellectual property rights in the Specification shall be exclusive property of the Buyer. The Seller shall not disclose to any third party or use any such specification except to the extent that it is or becomes public knowledge through no fault of the Seller or as required for the purpose of the Contract.
3.3 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the goods and the performance of the services.
3.4 The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.
3.5 If as a result of inspection or testing the Buyer is not satisfied that the goods will comply in all respects with the Contract and the Buyer so informs the Seller within seven days of inspecting or testing, the Seller shall take such steps as are necessary to ensure compliance.
3.6 The goods shall be marked in accordance with the Buyers' Instruction any applicable regulations or requirements of the carrier and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
4 PRICE OF THE GOODS AND SERVICES
4.1 The price of the goods and services shall be as stated in the Order and unless otherwise so stated shall be:
4.2 Exclusive of any applicable Value Added Tax (which shall be payable by the Buyer subject to receipt of a VAT Invoice) and;
4.3 Inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the goods to the delivery address and any duties impost or levies other than Value Added Tax.
4.4 No increase in the price shall be made (whether on account of increased material labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.
4.5 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller whether or not shown on its own Terms and Conditions of Sale.
5 TERMS OF PAYMENT
5.1 The Seller shall be entitled to Invoice the Buyer on or at any time after delivery of the goods or performance of the services as the case may be and each invoice shall quote the number of the Order.
5.2 Unless otherwise stated on the Order the Buyer shall pay the price of the goods and services within thirty days after the end of the month of receipt by the Buyer of a proper Invoice or, if later, after acceptance of the goods or services in question by the Buyer.
5.3 The Buyer shall be entitled to set off against the price any sums owed to the Buyer by the Seller.
6.1 The goods shall be delivered to and the service shall be performed at the delivery address on the date or within the period stated in the Order in either case during the Buyer's usual business hours.
6.2 Where the date of delivery of the goods or of performance of the services is to be specified after the placing of Order, the Seller shall give the Buyer reasonable notice of the specified date.
6.3 The time of delivery of the goods and the performance of the services is of the essence of the Contract.
6.4 A packing note quoting the number of the Order must accompany each delivery or consignment of the goods and must be displayed promptly.
6.5 If the goods are to be delivered or the services are to be performed by instalments the Contract will be treated as a single Contract not severable.
6.6 The Buyer shall be entitled to reject any goods delivered which are not in accordance with the Contract and shall not be deemed to have accepted any goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the goods has become apparent.
6.7 The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the goods and performance of the services.
6.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the goods whether or not any goods are accepted by the Buyer.
6.9 If the goods are not delivered or the services are not performed on the due date then without prejudice to any other remedy, the Buyer shall be entitled to deduct from the price or if the Buyer has paid the price, to claim from the Seller by way of liquidated damages for delay 5% of the price for every week's delay up to a maximum of 50%.
7 RISK AND PROPERTY
7.1 Risk of damage to or loss of the goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.
7.2 The property in the goods shall pass to the Buyer upon delivery unless payment of the goods is made prior to delivery when it shall pass to the Buyer once payment has been made and the goods have been appropriated to the contract.
7.3 WARRANTIES AND LIABILITIES
7.4 The Seller warrants with the Buyer that the goods:
7.5 Will be of merchantable quality and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the Order is placed.
7.6 Will be free from defects in design material and workmanship.
7.7 Will correspond with all statutory requirements and regulations relating to the sale of the goods.
7.8 The Seller warrants to the Buyer that the service will be performed by appropriately qualified and trained personnel with due care and diligence and to such high standards of quality as is reasonable for the Buyer to expect in all circumstances.
7.9 Without prejudice to any other remedy, if any goods or services are not supplied or performed in accordance with the Contract the Buyer shall be entitled:
7.10 To require the Seller to repair the goods or to supply replacement goods or services in accordance with the Contract within seven days; or
7.11 At the Buyers sole option, and whether or not the Buyer has previously required the Seller to repair the goods or to supply any replacement goods or services, to treat the Contract as discharged by the Seller's breach and require the repayment of any part of the price which has been paid.
7.12 The Seller shall indemnify the Buyer in full against any liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result or in connection with;
7.13 Breach of any warranty given by the Seller in relation to the goods or the services:
7.14 Any claim that the goods infringe, or their importation, use or resale, infringes the patent, copyright design right, trade mark or other intellectual property rights or any other person, except to the extent that the claim arises from compliance of any other person, except to the extent that the claim arises from compliance of any specification supplied by the Buyer.
7.15 Any liability under the Consumer Protection Act 1987 in respect of the goods.
7.16 Any act or omission of the Seller or its employees agents or subcontractors in supplying delivery and installing, the goods; and
7.17 Any act or omission of any of the Seller's personnel in connection with the performance of the services.
7.18 Neither the Seller nor the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the goods or services, if the delay or failure was beyond the party's reasonable control. Without prejudice to the generality of the forgoing the following shall be regarded as cause beyond either party's reasonable control:
7.19 Act of God, explosion, flood, tempest, fire or accident.
7.20 War or threat of War, sabotage, insurrection, civil disturbance or requisition:
7.21 Acts, restrictions regulations, bylaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
7.22 Import or export regulations or embargoes:
7.23 Strikes, lockouts or other industrial actions or trade disputes (whether involving employees of either the Seller or the Buyer or of a third party):
7.24 Difficulties in obtaining raw materials, labour, fuel, parts or machinery:
7.25 Power failure or breakdown in machinery.
8.1 The Buyer shall be entitled to cancel the Order in respect of all or part only of the goods and/or services by giving notice to the Seller at any time prior to delivery or performance in which event the Buyer's sole liability shall be to pay the Seller the price of the goods or services in respect of which the Buyer has exercised its right of cancellation, less the Seller's net saving of costs arising from cancellation.
8.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
8.3 The Seller makes any voluntary arrangement with its' creditors (within the meaning of the Insolvency Act 1986) or (being a company) becomes subject to Administration Order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction): or
8.4 An Encumbrancer takes possession or a receiver is appointed with any of the property or assets of the Seller; or
8.5 The Seller ceases or threatens to cease to carry on business; or
8.6 The Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
9.1 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or subcontract any of its obligations under the Contract.
9.2 The failure of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
9.3 Any Notice hereunder shall be in permanent readable form and addressed to the party concerned at his address shown overleaf (or such other address which may have been notified in writing to the other party.) Every notice shall if properly addressed, be deemed to have been duly served twenty-four hours after being posted.
9.4 Save as is expressly mentioned or referred to herein the Contract supersedes and cancels all previous Agreements and working arrangements whether oral or written express or implied between the parties in respect or in connection with the subject matter thereof.
9.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
9.6 The Contract shall be in all respects governed by and construed and interpreted in accordance with the Laws of England and the parties hereto submit themselves to the exclusive jurisdiction of the English Court.
UK Terms and Conditions of Supply
(a) "The Company" shall mean Eltek Power (UK) Ltd. or its proprietor, subsidiary or any associated Company
(b) "Products" shall mean the equipment plant or services which are the subject of this Contract
(c) "The Customer" shall mean the person firm or Company who contracts to purchase in full or in part the Products from the Company
(d) Any contract entered into by the Company for the supply of Products is subject to these conditions. Any writing on or attached to any purchase order form document or correspondence shall not be included or implied unless previously agreed upon in writing and signed by an authorised officer of the Company
(e) No order for supply arising from a quotation or otherwise shall be deemed to be accepted or constitute a legally enforceable contract with the Company until the Customer's purchase order is accepted by means of a written order confirmation by the Company or until delivery of the Products which ever shall be the earlier
(f) No responsibility is accepted by the Company for any inaccuracy or error in orders given by telephone
2. DESCRIPTIONS AND SPECIFICATIONS
The descriptions, specifications and illustrations contained on its web-site, catalogues price lists and other leaflets or advertising or descriptive matter produced by the Company shall not form part of the contract. No report representation or statement made by any employee or agent of the Company shall be binding on the Company. Any description or sample given of the Products is by way of identification only and does not constitute a sale by description or sample.
Any date or period quoted by the Company for delivery is given in good faith by way of estimate only. While the Company will endeavour to deliver within the period stated, such date or period is not to be of the essence of the contract and the Customer shall be bound to accept the Products when they become available. The Company shall not be liable for any delays in transit resulting in any way in respect of late delivery even when the Company has expressly agreed in writing a delivery date, nor shall such failure to deliver on the date or within the period named by the Company be deemed to be a breach of contract
(a) All prices and terms quoted by the Company or shown on the Company's web-site or any price lists catalogues etc. may be altered without notice and without liability to the Company.
(b) Prices of Products, both quoted and printed, are exclusive of VAT.
(c) The Company reserves the right at any time prior to delivery of the Products to adjust the price to take account of any increase in the cost of raw materials, labour or services or any currency fluctuations, increases of taxes or duties or any other matters affecting the cost to the Company in complying with the contract
(d) The Company reserves the right to impose a handling charge of not less than 15% on returned Products save in circumstances where the Products are returned by reason of defects or shortages which it is the Company's duty under the terms of this Agreement to rectify.
(e) The Company reserves the right to impose a minimum order charge
(f) Installation and commissioning will be quoted only against the specific request of the Customer. In all cases containers, packages and packing materials are chargeable to the Customer and not returnable.
(g) The Company reserves the right to amend any accidental errors and omissions in quotations and invoices
(a) Time for payment shall be of the essence
(b) The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order
(c) All accounts are payable in full on delivery of the Products unless expressly agreed in writing by the Company.
(i) For all credit accounts approved by the Company in writing for Customers in the UK invoices are to be paid in full within 30 days following date of invoice
(ii) For all Customers outside the UK payment must be made by confirmed irrevocable letter of credit, payable at site, unless other terms have been agreed in writing by the Company
(e) Where the Products are delivered in instalments or in the course of two or more separate deliveries any failure to make such payments due on or before the due date will entitle the Company at its option to treat the contract of sale as voided by the Customer and in such event the Company reserves all rights therein which may have accrued to the Customer prior to such termination
(f) In the event of non-payment, late payment or other default by the Customer the Company shall be entitled to recover all costs, including legal costs, thereby incurred together also with interest on the monies outstanding, calculated at 4% above Barclays Base Rate compounded monthly
6. RISK AND THE PASSING OF PROPERTY
(a) Risk in the Products shall pass to the Customer when the Products are delivered to or collected by the Customer or its agents
(b) Title in the Products remains vested in the Company and shall only pass from the Company to the Customer upon full payment being made by the Customer of all sums (due on whatsoever account or grounds) to the Company.
(c) Notwithstanding the above, the Customer shall, until such time as title shall have passed to him, insure the Products to their replacement value noting the Company's interest on the relevant insurance policy and the Customer shall forthwith, upon request, provide the Company with a certificate or other evidence of such insurance.
(d) If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 24.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
(a) The Customer is under a duty to inspect the Products on delivery or on collection as the case may be
(b) In circumstances where the Company undertakes delivery of the Products, claims for damage in transit or shortage in delivery of the Products will only be considered if the carriers and the Company receive written notification of such damage within three working days of delivery or in the event of loss of Products in transit within fourteen working days of the date of consignment. When Products are accepted from carriers without being checked the delivery book must be signed "Not Examined"
If access is not available to the location stated in the contract the Company or their carriers reserve the right to deliver to the nearest convenient location and to notify the Customer of their action
(c) In all cases where defects or shortages are complained of, the Company shall be under no liability in respect thereof unless an opportunity to inspect the Products is afforded to the Company before any use is made thereof or any alteration or modification is made thereto by the Customer
(d) Subject to clauses 7(b) and 7(c), the Company shall make good any shortage in the Products and where appropriate will replace any Products damaged in transit as soon as it is reasonably able to do so, but otherwise shall be under no liability whatsoever or howsoever arising from such shortage or damage.
(a) The Company warrants that it has title to and the unencumbered right to sell the Products. Such warranty specifically includes the Company's ownership of the necessary patent rights and copyright sufficient to enable the Customer to use the Products for any purpose stated. However nothing in these terms or otherwise shall be deemed to grant to the Customer the right to manufacture or in any way reproduce the Products or reproduce or use any intellectual property rights of the Company or its agents
(b) No representation or warranty is given as to the suitability of the Products for any particular purpose and the Customer shall satisfy himself in this respect and shall be totally responsible therefor
(c) Where the Company have produced or manufactured Products to the Customer's design the Company shall not accept any liability for design errors
(d) All Products supplied shall have such warranty as shall be notified to the Customer on the making of the contract. Details of such warranty may be obtained from the Company at any time and will be stated in the Company's web-site or on the invoice. In the event of any discrepancy between the details of such warranty the details set out in the invoice shall prevail.
(e) In the case of any Products not manufactured by the Company but supplied by them or incorporated within the Company's Products the Company is unable to provide any warranty but will where possible assign to or pass on to the Customer the benefit of any such warranty that the Company shall itself have received from its own Company
(f) In the case of services carried out by the Company it shall rectify any error or omission therein which shall have been notified in writing to the Company within the period specified and which shall have been proved to have been due to the neglect or default of the Company or its agents.
Where Products are insured by the Company the Company's liability shall be limited to the amount received by them or the value of the Products, whichever is the less, and the Company shall be under no liability to take proceedings for the recovery of loss or damage.
10. CUSTOMER'S TESTS
If the Customer requires tests or inspections to be made that are additional to the Company's standard procedures, the Customer shall be responsible for the costs incurred. The results of such tests will be certified to the Customer as required.
(a) In the event of the Company not receiving forwarding instructions within seven days of notification to the Customer that the Products are ready for despatch, such Products will be stored by the Company at the Customer's risk and expense
(b) The Company does not give warranty as to the fitness of any packing for storage purposes or any other purpose other than the transport of the Products to the named contract destination
12. INSTALLATION OF EQUIPMENT
(a) Where the Contract provides both for the supply and installation of Products the Company shall be responsible only for the provision of those items and services specified in the invoice (order acknowledgement). All other ancillary equipment and services required together with all reasonable labour costs shall be the responsibility of the Customer
(b) In the event that the Customer shall fail to provide all necessary power sources and other facilities required for the installation of the equipment the Customer shall be solely responsible for any additional costs or expenses incurred
The Company will supply the Customer's nominated representative with instructions for the proper and normal use of the Products. The production, supply and communication of instructions and warnings to, and the proper training of, the employees of the Customer and all other users of the Products will be the responsibility of the Customer
(a) Nothing herein shall be deemed to exclude or restrict the Company's liability for death or personal injury resulting wholly from the negligence of the Company
(b) The Company shall not be liable for any consequential or indirect loss suffered by the Customer whether this loss arises from a breach of duty in contract or tort or in any other way, including loss arising from the Company's negligence. Non-exhaustive illustrations of consequential or indirect loss include
(i) loss of profits
(ii) loss of contracts
(iii) damage to property of the Customer or anybody else
(iv) personal injury to the Customer or anybody else (except so far as such injury is wholly attributable to the Company's negligence)
(c) The Customer hereby agrees to indemnify the Company against all claims made against the Company by any of the Customer's employees, Customer's customers or any other person for which liability would have been excluded by this clause if the claim had been made against the Company by the Customer
(d) The Company shall not be liable in any way for any damages direct or consequential as a result of use of the Products for any purpose other than that notified in writing to the Company prior to sale, nor for any use not stated in the Company's specifications, nor for any fault or defect arising from the Customer's failure to disclose relevant and pertinent information to the Company. Where the Customer's requirement for the Products is misrepresented or omitted the Company shall be under no obligation in any manner and responsibility and liability shall pass to the Customer
15. ON-SITE FACILITIES
(a) Where work or services on the Customer's site is to be performed the Customer is to make all necessary provision for the safety comfort and convenience of the Company personnel. This provision is to include:
(i) Toilet and washroom facilities
(ii) Protective clothing that may be necessary by virtue of the Customer's or his agent's activities on site
(iii) Electrical power for hand tools
(iv) Telephone facilities
(v) A competent representative to liaise with the Company personnel
(vi) Information on site conditions and special regulations
(vii) Adequate parking facilities on-site
(viii) A secure area for the storage of tools and other equipment
(ix) Use of lifts (where available)
(b) The Customer must take all due care that is required by the Health and Safety at Work Act or any subsequent legislation
(c) Where the Customer or his agent has undertaken part or all of the necessary installation work and such work is not in the opinion of the Company's personnel to the required standard the Company shall not be liable to complete the contract and all expenses incurred by the Company will be payable by the Customer.
(d) All additional costs and expenses incurred as a result of the failure of the Customer to comply with the terms of this clause shall be payable by the Customer.
If the Customer wishes to return defective Products for repair, the Customer is required to follow the Repairs Procedure (RMA process) set out in the Company's web-site. Products returned for repair should be sent, carriage paid and be clearly labelled with the senders name and address and the RMA number issued by the Company.
17. DRAWINGS AND SKETCHES
The Company reserves the right to charge for the preparation of drawings or sketches prepared either for the submission or any execution of orders. All such drawings remain the property of the Company
18. WEEE DIRECTIVE
The Customer shall exclusively finance the collection and delivery of waste electrical and electronic equipment (WEEE) to the recycler's address specified by the Company, as required by Directive 2009/96/EC and applicable national law.
This clause applies to all new electrical and electronic equipment (EEE) put on the market by the Company after 13 August 2005 (known as new WEEE) as well as all EEE put on the market before 13 August 2005 (known as historic WEEE) which becomes waste as a result of a purchase of new EEE from the Company after August 2005.
If the Customer resells the EEE to a third party, the Customer will ensure that this clause in its entirety in included in the contractual arrangements governing the sale to the third party. The Customer agrees to indemnify and keep indemnified and hold harmless the Company and ENVIRON (as the operator of B2BWEEEE-Scheme) from and against all costs and expenses which ENVIRON or the Company incurs or suffers, as a result of direct or indirect breach or negligent performance or failure in performance by the Customer of its obligations in this clause.
19. FORCE MAJEURE
(a) The Company shall not be liable for any failure to deliver the Products arising from circumstances outside the Company's control
(b) Non-exhaustive illustrations of such circumstances would be Acts of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations, delay by suppliers, accidents, shortage of materials, labour or manufacturing facilities
(c) Should the Company be prevented from delivering in the above circumstances it shall give the Customer written notice of this fact as soon as reasonably practicable after discovering it
(d) If the circumstances preventing delivery are still continuing six months after the Customer receives the Company's notice then either party may give written notice to the other cancelling the contract
(e) If the contract is cancelled in this way, the Company will refund any payment which the Customer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Customer) but the Company will not be liable to compensate the Customer for any further loss or damage caused by the failure to deliver.
The Company has an Equal Opportunities Policy but nevertheless reserves the right to employ persons of their choice on all contracts including on-site work. Subject to this, the Company will use its best endeavours to co operate with site agreements provided this does not conflict with their normal course of work.
(a) The Customer shall be solely responsible for ensuring that any import or other regulations of any country or district to which the Products are to be exported are complied with and the Company shall be under no liability whatsoever should the Products subsequently fail to fulfil the requirements of such regulations
(b) The Customer shall inform the Company of any intended further transhipment of the Products to third parties and their proposed use so that the Company may ensure that the contract is in compliance with any export restrictions or embargoes laid down from time to time by the government of the United Kingdom. In the event that such restrictions prevent the Company from complying with its contractual obligations the contract will be treated as being subject to Force Majeure and dealt with in accordance with clause 19. If a Customer, knowingly or not, provides misleading information to the Company the Customer shall indemnify the Company against any penalties, fines or other expenses incurred as a result
(a) If the Customer shall fail to pay the contract price to the Company on the due date or, if an actual person, die or be the subject of an order under the Mental Health Act 1959, or if any distress or execution is levied upon the Customer's property or assets or if the Customer shall offer to make any scheme or arrangement with creditors or commit any act of bankruptcy or, being a Company, has a receiver appointed for any part of its undertaking or assets or if a resolution for winding up shall be passed, then the Company may treat all sums due or to become due on any delivery as immediately payable or suspend or cancel further deliveries or require payment in advance therefor or recover any Products which are unsold wheresoever they are stored or treat the contract as repudiated by the Customer but without prejudice to any other rights of the Company
(b) Cancellation of the order by the Customer for whatever reason shall entitle the Company to payment of all costs expenses and losses of the Company arising therefrom. Such notification of cancellation by the Purchaser shall not be deemed to have been accepted by the Company in the absence of specific agreement by the Company in writing to that effect. In all cases the Company reserves to itself any rights that it may have in law
23. CUSTOMER'S INSOLVENCY OR INCAPACITY
(a) If the Customer becomes subject to any of the events listed in clause 23(b), or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
(b) For the purposes of clause 23(a), the relevant events are:
(i) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
(ii) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or
(iii) (being an individual) the Customer is the subject of a bankruptcy petition or order; or
(iv) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within14 days; or
(v) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
(vi) (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
(vii) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
(viii) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 23 (b)(i) to 23(b)(vii) (inclusive); or
(ix) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
(x) the financial position of the Customer deteriorates to such an extent that in the opinion of the Company the capability of the Customer adequately to fulfil its obligations has been placed in jeopardy.
(xi) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the Customer at its address specified in the order or such other address as that it may from time to time notify in writing and shall be deemed to have been served, if sent by first class post, forty eight hours after posting.
Neither the Company nor the Customer shall assign or transfer or purport to assign or transfer the contract or the benefits thereof to any other person without the prior consent of each other
26. PROPER LAW AND JURISDICTION
The contract shall be governed by and construed in accordance with English Law and all disputes arising in connection with the contract shall be submitted to the jurisdiction of the English Courts
US Terms and Condistions of Purchase
Revision date: 06.10.13
1. Offer and Acceptance. Each purchase order that Eltek, Inc., a Delaware corporation, (“Buyer”) issues (each a “Purchase Order”), together with these Terms and Conditions of Purchase, is Buyer’s offer to purchase the goods (“Goods”) and services (“Services”) identified in that Purchase Order. Each Purchase Order, together with these Terms and Conditions of Purchase (these “Terms”), and any other documents specifically incorporated into the Purchase Order by Buyer or separately agreed to in writing, such as specifications, drawings, requirements of Buyer’s customer, or quality requirements, are, collectively, a “Supply Agreement.” All sales by Seller to Buyer are conditional on Seller’s assent to the terms of the Supply Agreement exclusively and without regard for any Seller-proffered terms or conditions. If these Terms are first tendered to Seller before Seller tenders Seller’s terms and conditions to Buyer, these Terms are in lieu of any terms and conditions later submitted by Seller and Buyer rejects all additional or different terms and conditions of Seller, whether confirmatory or otherwise. If Buyer tenders these Terms after the tender by Seller of other terms and conditions, whether as part of a Seller-generated purchase order or otherwise, then Buyer’s acceptance of any offer by Seller associated with Seller’s terms and conditions is expressly conditioned upon Seller’s acceptance of the Supply Agreement, including these Terms, exclusively and to the exclusion of any proffered Seller terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Seller. Seller’s confirmation or acknowledgement of a Purchase Order, these Terms, or a Supply Agreement, Seller’s commencement of performance, or Seller’s tendering of Goods or Services ordered will constitute Seller’s acceptance of these Terms, and of the Supply Agreement, exclusively. To the extent that Buyer uses accepts or uses any document that Seller tenders, such acceptance or use is an accommodation strictly for administrative convenience and no such acceptance or use will interfere with the effectiveness of this Section 1.
2. Invoices. Seller must submit invoices plainly marked with Buyer’s Purchase Order number. Except as otherwise expressly stated in a Purchase Order, Buyer will pay all undisputed amounts under Seller’s properly-issued invoices within 60 days after receipt of the Goods and/or Services to which the invoice applies. If Seller fails to invoice any charge within 90 days after the earliest time that Seller is permitted by a Supply Agreement to invoice for such charges, Seller forfeits any right to invoice for, or collect, such charges.
3. Limitation on Fabrication. For blanket purchase orders, no fabrication is permitted in excess of 30 days beyond the then-current month’s release unless expressly permitted by Buyer in a signed writing. Any advance material authorization is to be construed as permitting procurement of raw material, but not fabrication unless separately authorized in a signed writing.
4. Pricing. The prices contained in each Purchase Order are firm prices that are not subject to change, regardless of materials prices, the prices of labor, or any other causes. For the avoidance of doubt, under no circumstances will UCC Sec. 2-615 or any other similar rule of law be construed to permit any change in pricing. Pricing includes all packaging costs. Seller represents and warrants to Buyer that the prices and terms stated in any Supply Agreement are at least as favorable to Buyer as any prices and/or terms that Buyer offers or provides to any other customer of Buyer for each good and service that is the same as, or substantially similar to, the Goods and Services. If and when Seller offers or provides to any third party prices and/or terms that are more favorable than the prices and/or terms with respect to a Good or Service under any Supply Agreement, Seller will immediately notify Buyer of such more favorable price(s) and/or term(s) and give to Buyer the more favorable price(s) and/or term(s) for any purchases to be delivered at any time after Seller offers or provides to any third party such prices and/or terms.
5. Taxes. Except to the extent expressly provided otherwise in a Purchase Order, all taxes are deemed included in the price of all applicable Goods and Services and Seller represents and warrants that all such taxes are so included. Buyer will not be liable to Seller for, and Seller may not collect from Buyer, any taxes associated with the provision or receipt of the Goods and/or Services other than taxes imposed by a governmental unit that expressly requires Seller to collect such taxes from Buyer. Whenever federal, state, or local taxes are charged or collected, Buyer must list taxes separately on each invoice.
6. Shipping Terms. Unless otherwise expressly stated in a Purchase Order, all prices are F.O.B. (UCC Sec. 2-319) Buyer’s plant for orders shipped within the United States and DDP (Incoterms 2010) Buyer’s plant for orders shipped internationally.
7. Packing; Containers. Seller will plainly mark all containers, crates, boxes, and packages with Buyer’s order number and include packing lists with all shipments. Failure to properly mark purchased Goods will delay payment until Buyer receives proper documentation.
8. Deliveries. Time is of the essence in all of Seller’s performances under any Supply Agreement. If Seller fails to timely deliver any goods or services provided for in a Supply Agreement, Buyer may, in addition to any other remedies under a Supply Agreement or otherwise, (1) require that Seller ship by express or other more rapid means of delivery with any additional expense to be paid by Seller, or (2) cancel all or any part of the applicable Supply Agreement. If, by reason of Seller’s failure to make deliveries as or when specified, Buyer finds it necessary to use other articles of material in place of those covered by a Supply Agreement, Seller will pay Buyer whatever expense, loss, or damage Buyer sustains by reason thereof. Seller will promptly give notice to Buyer of any fact or circumstance of which Seller is aware or of which Seller could, with reasonable diligence, be aware, that could reasonably be expected to delay any delivery of Goods or Services under any Supply Agreement. Seller may not ship excess quantities unless expressly authorized by Buyer in a signed writing. If Seller ships unauthorized excess quantities, Buyer may ship the same back to Seller (FOB or DDP (Incoterms 2010)) Buyer’s location or, if Buyer retains the unauthorized excess quantities, Seller will reimburse Buyer for the reasonable costs of storing any unauthorized excess quantities delivered and, in any case, risk of loss to the Goods will remain with Seller. Buyer need not perform incoming inspections of any Goods or Services and Seller waives any right to require Buyer to conduct any such inspections.
9. Quality Programs. Seller will participate in Buyer’s supplier quality and development program(s), if any, and comply with all quality requirements and procedures that Buyer specifies from time to time.
10. Inspection; Acceptance. All Goods and Services, and the facilities at which Seller manufactures, processes, or provides the same, are subject to inspection and/or test at any reasonable time or place, and in any quantity by Buyer or Buyer’s direct or indirect customer(s). If any such inspection and/or test is made on Seller’s premises or the premises of Seller’s subcontractor(s), Seller will furnish, without additional charge, all reasonable facilities and assistance required by the inspectors. Such inspections and/or tests shall not relieve Seller of the obligation to make full and adequate inspections and tests nor constitute acceptance of any Good or Service. Receipt of, and/or payment for, Goods and Services will not itself constitute acceptance by Buyer of any Goods or Services. If a Good or Service fails to conform to any requirement, representation, or warranty under a Supply Agreement, Buyer or its customers may reject such Goods and/or Services or require their replacement or correction. Buyer may return all rejected Goods or Services at Seller’s invoice price plus all transportation charges and handling expenses. Buyer may, or may cause a third party to, rework, repair, or correct, any Goods or Services that fail to conform to the warranties contained in the applicable Supply Agreement and Seller shall bear all costs thereof. Buyer may reject all Goods and Services if any of the Goods or Services do not conform to the warranties contained in these Terms and Buyer will have no obligation to reject only commercial units or installments of the Goods or Services.
(a) Seller’s Warranties regarding Goods and Services. Seller represents and warrants to Buyer and to each of Buyer’s direct and indirect customers and users (a) that the Goods and Services will conform strictly to the specifications, drawings, samples or descriptions furnished to or by Buyer; (b) that the Goods and Services are new and unused; (c) that the Goods and Services will be free of defects in design (unless, and then only to the extent that, Buyer provided the design), materials, or manufacture; (d) that the Goods and Services will be merchantable; (e) that the Goods and Services will be fit for the purposes of Buyer and/or Buyer’s direct and indirect customers to the extent that the same are made known to Seller; (f) that the Goods and Services will comply with all applicable environmental, occupational safety, health, and other laws, rules, and regulations applicable to the design, function, or use of the Goods and/or Services in any jurisdiction of which Buyer informs Seller; (g) any Goods that are reasonably likely to go to an end user’s hands in substantially the same form as when delivered to Buyer will have attached all warning labels, tags, or other notices necessary to avoid a failure-to-warn claim of product liability with respect to the Goods; and (h) neither the Goods nor the Services, nor their possession or use by any Buyer Indemnitee (defined below) as contemplated by a Supply Agreement or as implied by the nature or character of the Goods and Services, will infringe upon, violate, or misappropriate any intellectual property, contract, or other right of a third party. Seller shall immediately notify Buyer of any errors in specifications or drawings provided by Buyer to the extent that Seller is aware of same or that a reasonably skilled manufacturer, provider, or merchant of goods and services of the kind should have discovered. Seller further warrants that it has marketable title to all Goods and that Seller will deliver all Goods free and clear of liens and encumbrances.
(b) Recalls. This Section 11(b) applies to any voluntary or government-mandated offer by Buyer (or, to the extent applicable, by Buyer’s direct or indirect customer) to purchasers of goods or services containing the Goods or the Services to remedy an alleged defect that affects safety or to address an alleged failure of a good or service containing the Goods or the Services to comply with an applicable safety standard or guideline (a “Recall”). Seller will be liable for costs and damages resulting from a Recall to the extent that it results from a failure of the Goods or Services to conform to the warranties stated in Section 11(a). Buyer will (i) notify Seller as soon as practicable after Buyer learns that a Recall being considered implicates the Goods and/or Services (it being understood that any delay in notification will reduce Seller’s liability only to the extent of actual prejudice thereby caused), (ii) provide to Seller such performance evaluations, accident reports, engineering investigations, and other data relating to the potential Recall as Buyer possesses or controls, (iii) provide to Seller a reasonable opportunity to participate in inquiries and discussions among Buyer, its direct or indirect customer(s), and governmental agencies regarding the need for and scope of the Recall, and (iv) consult with Seller about the most effective method of modifying or replacing systems or component parts, including the Goods and/or the Services, in order to remedy the alleged defect or non-compliance.
12. Service Parts. If the Goods constitute parts for durable goods, Seller will, for 10 years after Seller last delivers serial production Goods to Buyer, make available for purchase by Buyer the Goods as service parts at prices that are comparable to the prices stated in the original Supply Agreement for serial production Goods (a) adjusted for inflation if reasonable, but in no case greater than commercially reasonable prices at the time of ordering and (b) otherwise adjustable only for the actual costs associated with setup, retooling, materially shorter production runs, or packaging.
13. Hazardous Materials. If any Goods are, or contain, materials that are identified by any workplace health or safety or environmental law as hazardous, Seller will prominently label the Goods as such and will provide to Buyer, before delivery or concurrently with delivery, all Material Safety Data Sheets and any other information necessary to handle and store the Goods safely.
14. Indemnification. Seller will indemnify, defend, and hold harmless Buyer and Buyer’s equityholders, directors, managers, officers, employees, agents, and direct and indirect customers (each a “Buyer Indemnitee”) against any third-party claim or demand for injury or death of persons, property damage, economic loss, and any other damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other theory, to the extent caused or alleged to have been caused by Seller’s defective design, manufacture, or provision of Goods or Services, Seller’s willful or negligent acts or omissions in its performance under a Supply Agreement, or alleging any other fact or series of facts that, if true, would be, or be evidence of, a breach by Seller of any warranty under a Supply Agreement.
15. Insurance. Seller will procure and maintain insurance reasonably satisfactory to Buyer covering Seller’s liability for the items for which Section 14 requires Seller to indemnify the Buyer Indemnitees. Seller will cause Buyer to be named additional insured on each such policy insurance and will cause the insurer(s) to give to Buyer at least 30 days’ notice of any expiration, termination, or reduction of such insurance. Buyer will, promptly upon request by Seller, provide to Seller one or more certificates of insurers evidencing the required insurance and showing Buyer as additional insured. For the avoidance of doubt, nothing in this Section 15 will reduce Seller’s obligations under Section 14 or require that Buyer limit its recovery to the benefit of, or proceeds of, any insurance.
16. Intellectual Property Rights.
(a) Buyer’s Intellectual Property. Buyer does not by these Terms or any Supply Agreement transfer to Seller any right in any idea, invention, improvement, new and useful process, machine, manufacture, or composition of matter, new and useful improvement thereof, novel ornamental design of a functional item work of authorship, patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right or similar right (“Intellectual Property Right”) of Buyer in information, documents, or property that Buyer makes available to Seller under a Supply Agreement or otherwise, other than the right to use Buyer’s Intellectual Property Rights to produce and supply Goods and Services solely to Buyer.
(b) Seller’s Intellectual Property. If a Supply Agreement is canceled other than by Seller for Buyer’s breach, Seller grants to Buyer a non-exclusive right and license to use and have used Seller’s Intellectual Property Rights to obtain from alternate sources products and services similar to the Goods and Services to the extent of the volume of Goods and Services that Buyer could have ordered under the affected Supply Agreement(s).
(c) Intellectual Property Rights Generated in Performance of Supply Agreement. If Seller, in the course of performance under a Supply Agreement, conceives, creates, discovers, invents, generates, or reduces to practice anything in which Intellectual Property Rights arise or exist, Seller will immediately (i) give notice to Buyer of the creation, discovery, invention, or work of authorship and the Intellectual Property Rights therein, (ii) assign to Buyer all such Intellectual Property Rights, and (iii) cooperate with Buyer (including, but not limited to, by making available Seller personnel to assist in prosecution of such rights), at Buyer’s expense for reasonable out-of-pocket costs, in prosecuting, securing, registering, and perfecting such rights in Buyer.
(d) Infringement. Seller will indemnify, defend, and hold harmless each Buyer Indemnitee from and against all claims, suits, actions, liabilities, losses, damages, penalties, interest, costs, and expenses, including reasonable legal fees, arising out of, or relating to, any actual or alleged infringement by the Goods or the Services (or the possession or use thereof by any direct or indirect customer of Buyer) of a third-party Intellectual Property Right, contract right, or other right.
17. Compliance with Law. In the performance of all Supply Agreements, Seller will comply will all federal, state, and local laws, ordinances, rules, orders, regulations or requisitions that are applicable to each Supply Agreement and/or to Seller. Seller will, upon Buyer’s request, furnish to Buyer such certificates of compliance with the same, including, but not limited to, Customer environmental requirements, and in such form, as Buyer from time to time requires.
18. Activities at Buyer’s Facilities. Seller will cause each agent of Seller to enters any facility of Buyer to comply with all workplace rules and security requirements of Buyer.
19. Changes. Buyer reserves the right at any time to make changes in drawings and specifications as to any Goods or Services. If any actual difference in cost to Seller results, the applicable price(s) shall be equitably adjusted, provided that Seller makes a written claim for adjustment within 10 days after first receiving the proposed changes. Each Supply Agreement is also subject to change, modification, suspension, or cancellation by Buyer in the event of fire, accidents, strikes, government acts, acts of God, curtailments, or reductions in orders by Buyer’s customers, or any other conditions or events beyond Buyer’s commercially reasonable control.
20. Term and Termination.
(a) Generally. Each Supply Agreement will remain in effect for the term specified in the Supply Agreement (which term may be specified as a platform life, product life, quantity, or by other means) unless earlier terminated by Buyer by reasonable (but not less than 30 days’) notice to Seller. Upon termination of a Supply Agreement, Seller will assist Buyer in locating an alternative source for the Goods and Services and in moving production to the alternate source selected by Buyer.
(b) Termination for Seller’s Default.
(i) Buyer may immediately cancel or terminate, in whole or in part, any Supply Agreement in the event that:
(A) Seller becomes unable to pay its debts as they become due;
(B) A receiver or similar custodian or agent is appointed for Seller or any material part of Seller’s business;
(C) Seller makes an assignment generally for the benefit of creditors;
(D) Seller becomes entitled to demand adequate assurance of performance under UCC Sec. 2-609 and Buyer fails to deliver to Buyer adequate assurance of performance by the earlier of the fifth day after such demand or, if shorter considering the circumstances, a reasonable time after demand; or
(E) Seller materially defaults under any of its obligations under any Supply Agreement (whether the Supply Agreement that is the subject of termination or any other Supply Agreement) or any other agreement between Buyer and Seller and fails to cure such default within 10 days after receipt of notice of such default.
(ii) In the event of cancellation of a Supply Agreement or part thereof by Buyer for Seller’s default, Buyer may, in addition to cancellation, have any and all other remedies available at law or in equity.
21. Buyer Property; Bailment. All supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, other property purchased by Buyer from Seller, furnished by Buyer to Seller, paid for by Buyer, or for which Buyer reimburses Seller (“Buyer Property”) shall at all times be and remain the property of Buyer. BUYER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO BUYER’S PROPERTY AND PROVIDES BUYER’S PROPERTY “AS IS AND WHERE IS.” Seller will not permit any third-party encumbrance or claim of any kind to attach to any Buyer Property. Seller will appropriately segregate Buyer Property and prominently mark and/or tag all Buyer Property as being the property of Buyer. Seller will, at its own expense, insure for the benefit of Buyer to its full replacement value, all Buyer Property in Seller’s possession or control. Seller may not use any Bailed Property for any purpose other than Seller’s performance of a Supply Agreement for Seller and, in any case, Seller may not use any Buyer Property for its own benefit or the benefit of any third party. Seller may not move any Buyer Property from the initial Seller location to which the Buyer Property is delivered except on the express written and signed instructions of Buyer. Buyer may enter onto Seller's premises at any reasonable time to inspect and/or take all Buyer Property and Seller's records with respect thereto. Seller will arrange with any landlord or other third party any access necessary to any premises over which any such third party may or does limit access. Upon completion of Supply Agreements or parts thereof or their cancellation or termination for whatever cause, Seller shall:
(a) Hold and protect all Buyer Property pending instructions from Buyer as to disposition of the same, free of all charges for such service and storage; and
(b) Upon receiving instructions from Buyer to deliver the Buyer Property to Buyer or Buyer’s nominee, promptly deliver the Buyer Property as instructed.
22. Labor. Seller will notify Buyer of the contract expiration date at least six months before the expiration of a current labor contract covering Seller’s employees or the employees of Seller’s principal suppliers that has not been extended or replaced. Buyer may thereafter direct Seller in writing to manufacture up to 60 days of additional inventory of Goods, specifying the quantities of Goods required and any packaging and storage requirements, and Seller will comply with such direction by Buyer.
23. Confidential Information. Seller will keep in confidence, and prevent the disclosure to any third party of, all information and data disclosed to it by Buyer or that Seller learns from Buyer, in either case that is not readily ascertainable by the public by proper means, including, but not limited to, specifications, quotes, business plans, technological techniques, prints, inventions, and information about research and development.
24. Remedies Cumulative. Each remedy of Buyer is cumulative with each other remedy contained in each Supply Agreement and with all other remedies available to Buyer at law, in equity, and otherwise, and no pursuit by Buyer of any particular remedy will constitute an exclusive election by Buyer of any particular remedy.
25. Assignment; Third Parties. Seller may not assign or subcontract its duties or responsibilities under any Supply Agreement without the prior written consent of Buyer. Buyer may freely assign its rights and obligations under any Supply Agreement or part thereof and, thereupon, Buyer will have no liability for any obligation that arises after the date of the assignment. Buyer may, at its option, permit one or more of its affiliates to purchase Goods or Services under any Supply Agreement, any such purchases by Buyer’s affiliates will be solely for each Buyer affiliate’s own account, and Buyer will have no liability for any breach by any Buyer affiliate with respect to such Buyer affiliate’s purchases. All Buyer Indemnitees are express third-party beneficiaries of all indemnification obligations and warranties of Seller under these Terms and any Supply Agreement. There are no other third-party beneficiaries of any right or obligation under any Supply Agreement.
26. Customs. Transferable credits or benefits associated with Goods and/or Services purchased, including trade credits, export credits, or rights to the refund of duties, taxes, or fees, belong to Buyer unless otherwise prohibited by applicable law. Seller will provide to Buyer all information and records relating to the Goods and/or Services necessary for Buyer to (1) receive these benefits, credits, and rights, (2) fulfill any customs obligations, origin marking or labeling requirements, and certification or local content reporting requirements, (3) claim preferential duty treatment under applicable trade preference regimes, and (4) participate in any duty deferral or free trade zone programs of the country of import. Seller will obtain all export licenses and authorizations and pay all export taxes, duties, and fees unless otherwise stated in a Supply Agreement, in which case Seller will provide all information and records necessary to enable Buyer to obtain those export licenses or authorizations. For all Goods and/or Services covered by these Terms or any Supply Agreement, Seller shall provide to Buyer, at Buyer’s request from time to time, an up-to-date certificate of origin compliant with the provisions of the North American Free Trade Agreement or any similar treaty or rule of law.
27. Government Supply Agreements. If a Purchase Order identifies a government prime contract, the following clauses are hereby incorporated by reference. Equal Opportunity (E. O. 11246), 48 §§ CFR 52.222-26; Affirmative Action for Special Disabled and Vietnam Era Veterans (38 USC § 4212(a)), 48 CFR §§ 52.222-35; Affirmative Action for Handicapped Workers (29 USC § 793), 48 CFR §§ 52.222-36. Copies of these clauses are available on request.
28. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BUYER BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES OR (B) DAMAGES IN EXCESS OF THE PRICE OF THE GOODS OR SERVICES THAT ARE THE SUBJECT OF THE CLAIM. THESE LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING THAT THEY CAUSE ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE AND NOTWITHSTANDING THAT BUYER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
(a) Choice of Law; Jurisdiction; Venue. These Terms and all Supply Agreements will be governed by and construed in accordance with the laws of the State of Texas without regard for their conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms or any Supply Agreement. Any action or claim arising out of or related to these Terms or any Supply Agreement may be brought only in the courts of the State of Texas sitting in Dallas County, Texas or the United States District Court for the Northern district of Texas and Seller and Buyer each irrevocably consent to the jurisdiction of, and venue in, such courts.
(b) Severability. If any provision of any Supply Agreement is illegal or unenforceable such provision will be reformed to, insofar as is possible, permit it to confirm with applicable law and, in any case, the remaining provisions will continue in full force and effect.
(c) Advertising. Seller will not advertise or otherwise disclose to the public its relationship with Buyer or Buyer’s customers without Buyer’s prior written consent, except as is necessary in order to perform a Supply Agreement or as required by law.
(d) Audit Rights. Seller will maintain, for not less than three years after completion of each Supply Agreement, records necessary to support amounts charged to Buyer under such Supply Agreement. Buyer and its representatives may audit such records to the extent needed to verify that Seller’s invoices and any payments to Seller are supported by the Supply Agreement. Any audit will be conducted at Buyer’s expense (but will be reimbursed by Seller if the audit reveals material errors in the amounts charged), at reasonable times, and at Seller’s usual place of business.
(e) Relationship of the Parties. Buyer and Seller are independent contractors, and nothing in a Supply Agreement makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
(f) Waiver. Buyer’s failure to insist on performance of any obligation, or to exercise any right or privilege, or Buyer’s waiver of any obligation, shall not thereafter be a waiver of other terms, conditions, rights, or privileges, or of the same terms, conditions, rights, or privileges on a different occasion.
(g) Notice. Any notice required or permitted to be given under a Supply Agreement must be in writing and will be deemed effective (a) if given by personal delivery, upon such personal delivery or (b) if given by nationally-recognized courier or mail service (in either case that has realtime or near-realtime tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver’s premises according to the tracking records of the courier or mail service. The addresses for notice for each party are those on the Purchase Order, Attn: Legal Department. Either party may change its address for notice by giving to the other party notice of the change of address.
(h) Drafting Party. No rule that requires the construction of any language against the drafting party will apply to the construction, administration, or enforcement of any Supply Agreement.
(i) Entire Agreement. Each Supply Agreement constitutes the entire agreement between the parties with respect to its subject matter, and each Supply Agreement supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of that Supply Agreement, including, but not limited to, any Seller quotation unless Buyer specifically incorporates it into in a Supply Agreement in a signed writing. No subsequent terms, conditions, understandings, or agreements purporting to modify the terms of any Supply Agreement will be binding unless in writing and signed by the party against which enforcement is sought.
US Terms and conditions of Sale
Sales under these terms and conditions (these "Terms") are by Eltek, Inc., a Delaware corporation, ("Seller") to the entity named as the buyer or purchaser ("Buyer") in the documentation to which these Terms are attached or with which they are associated and are conditional upon Buyer's agreement with these Terms and only these Terms. If these Terms are first tendered to Buyer before Buyer tenders a purchase order or similar document to Seller, these Terms are in lieu of any terms later submitted by Buyer and Seller rejects all additional or different terms and conditions of Buyer, whether confirmatory or otherwise. If Seller tenders these terms after the tender by Buyer of other terms, whether as part of a purchase order or otherwise, then Seller's acceptance of any offer by Buyer associated with Buyer's terms is expressly conditioned upon Buyer's acceptance of these Terms exclusively and to the exclusion of any proffered Buyer terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Buyer. Buyer's performance, or acceptance of, or payment for, any products from Seller will constitute Buyer's acceptance of these Terms exclusively. These Terms, together with any associated description of the products and quantity and price terms that are the subject of the purchase and sale transaction under these Terms constitute a "Supply Agreement." Buyer represents and warrants that any products that it purchases from Seller are for business or commercial use only and not for domestic, personal, family, or household use.
1. Description of Products. Seller agrees to sell, and Buyer agrees to purchase, the products described as part of the Supply Agreement.
2. Prices; Minimum Quantities. The prices of the products and/or services supplied by Seller are as stated in the Supply Agreement or, if they are not stated in the Supply Agreement, the prices are Seller's then-current list prices. Except as otherwise expressly provided in a Supply Agreement, prices may be adjusted to the prices in effect at the time of delivery, whether as a result of fluctuations in commodity prices or otherwise. Except as otherwise stated in a Supply Agreement, all pricing is EXW (Incoterms 2010) Seller's facility or such other location as Seller specifies in a Supply Agreement. Buyer acknowledges and agrees that the prices are based on Buyer purchasing the stated or contemplated quantity and/or in minimum shipment quantities of those products. Where, and if, Buyer fails to purchase stated quantities, Seller's remedy may include recovery of price differentials associated with smaller-quantity purchases. Where Buyer orders a product that is subject to a minimum order quantity and the quantity ordered does not meet that minimum order quantity, Seller reserves the right to adjust the price or ship the minimum order quantity at Seller's discretion.
3. Taxes and Fees. All prices are exclusive of sales, use, excise, customs, export, import, commodity and/or any other taxes. Buyer will pay all such taxes and any license fees or other charges incidental to the sale of products. Buyer will, at Seller's request, provide to Seller reasonable proof of payment by Buyer of such taxes, fees, and assessments. If Seller is required to prepay any taxes on behalf of Buyer, Buyer will promptly reimburse Seller for all such taxes paid. If provision of the products and/or services requires any documentary letter of credit or similar document, instrument, or process, Buyer shall pay all fees and costs associated therewith.
4. Payment Terms. Unless provided otherwise in writing in a Supply Agreement, payment terms are net 30 days from date of shipment. Buyer will pay any invoice issued by Seller without discount, setoff, or reduction. Seller may, at its sole discretion, require payment by bank transfer, cash, certified check, C.O.D., or irrevocable letter of credit. All trading accounts are subject to prior approval of Seller's credit department in accordance with Seller's credit policies and practices in effect from time to time. Seller may revise the amount of credit or terms of payment at any time for any reason. If Buyer fails to make payment when due or defaults in any other way, Seller may, at its option, without limiting any of its other rights or remedies available under these Terms or applicable law, and until Buyer's account is current: (1) withdraw credit and suspend or cancel performance under any or all Supply Agreements; and/or (2) reschedule shipment. Seller may invoice separately for each shipment and, in any case, Buyer will pay for each shipment as invoiced without regard for other shipments.
5. Shipments. Seller will ship EXW (Incoterms 2010) Seller's facility or such other location as Seller specifies in a Supply Agreement. Seller may select the freight carrier, and Buyer accepts carrier selection by Seller unless Buyer timely specifies in writing an alternative carrier reasonably acceptable to Seller. Title to products will pass to Buyer upon delivery (it being understood that "delivery" refers to the delivery point and event contemplated by the shipping terms and not necessarily to delivery to Buyer at Buyer's place of business or to Buyer's designee). Any claims against Seller for shortages or non-conformance that could, with due diligence, be discovered by inspection upon receipt must be made within 10 days after receipt. Seller will package the products in accordance with Seller's standard practice. Seller may make deliveries in installments with appropriate partial invoicing issued for each such installment. Seller may, but will not be required to, shorten lead times and deliver products more quickly than originally estimated, in accordance with Buyer requests, but reserves the right to increase pricing accordingly, or impose break-in charges, for directly or indirectly affected products or shipments thereof. Each shipment of products to be delivered is a separate sale and Buyer will pay the price for each shipment without regard for any failure to deliver, or non-conformity of, any previous, concurrent, or subsequent shipment. Seller's breach or default in the delivery of any particular shipment will not permit Buyer the right to refuse to receive any other shipment. Time is not of the essence and Buyer is not entitled to reject an otherwise conforming tender made within a reasonable time. Any failure by Buyer to pay for any shipment within the time stated for payment is an anticipatory material breach with regard to other shipments. Once Seller commences production of products and/or provision of services and/or determines a shipping or delivery date with regard to the same, Seller will be entitled to provide, ship, and/or deliver such products and/or services and receive payment therefor and Buyer may not revise the timing for receipt of such products and/or services
6. Security Interest. Buyer grants to Seller a security interest in the products supplied under any Supply Agreement and any proceeds thereof and accessions thereto as security for Buyer's obligations (payment and otherwise) to Seller. Seller may file any financing statement or similar document and/or take any other action permitted by applicable law to perfect and enforce such security interest and, if local law requires that a financing statement or similar document be signed or otherwise acknowledged by a debtor party, Buyer authorizes Seller to execute and deliver on Buyer's behalf any such document.
7. Cancellation; Default.
(a) Cancellation for Default. Either party may, without prejudice to its other rights or remedies, cancel (as that term is defined by UCC Sec. 2-106(4)) a Supply Agreement by notice to the other party if: (1) the other party files a petition in bankruptcy or assignment generally for the benefit of creditors or initiates, or has initiated against it, any similar proceeding under any law with respect to creditor's rights, adjustment of debts, or similar law, becomes insolvent, becomes, or admits that it is, unable to pay its debts generally as they become due, or has a third-party manager or receiver appointed over any of its assets or (2) the other party defaults under these Terms and does not remedy the default within 30 days (10 days in the case of payment defaults) following notice by the aggrieved party.
(b) Adequate Assurance of Performance. In any circumstance where Seller has the right to demand adequate assurance of Buyer's performance (such as, but not limited to, under Section 2-609 of the Uniform Commercial Code, where applicable), Buyer will provide such assurance within a reasonable time not to exceed five days.
(c) Other Cancellation by Seller. If Buyer fails to pay in accordance with these Terms or any Supply Agreement or fails to comply with any provision of these Terms or any Supply Agreement, Seller may cancel any Supply Agreement as to unshipped portions of the products and cancel any applicable raw materials orders placed with its suppliers, and Buyer will remain liable for shipped products. If Seller elects to continue to make shipments after the Buyer has failed to make payment for the shipment in advance or fails to provide adequate assurances of performance, no action by Seller shall constitute a waiver of any default by the Buyer or in any way affect Seller's remedies for any such default.
8. Product Changes. Seller may, at any time and without notice to the Buyer, change the product(s) in any way that does not adversely affect the form, fit or function of the product(s) in any material respect. If Buyer at any time requests changes to the product(s), drawings, or specifications of the products(s), or otherwise wishes to change the scope of a Supply Agreement, including, but not limited to, such matters as inspection, testing, or quality control, Seller may terminate the Supply Agreement with respect to the items affected by such change(s) or reasonably change the time for performance and/or the price of product(s) to take into account the changes.
9. Technical Assistance. Except as provided for in a separate signed agreement or as expressly stated in a Supply Agreement, Seller will not be required to provide technical advice, facilities, or service in connection with any Supply Agreement or the products supplied.
10. Assignment. Seller may subcontract the performance of any obligation of Seller under any Supply Agreement, provided only that Seller remains primarily liable for the performance of the obligation. Buyer may not assign any right or obligation under any Supply Agreement. Seller may assign any right or obligation under any Supply Agreement and, provided only that Seller's assignee has assumed the obligation(s) of Seller, Seller will, upon such assignment, have no further liability as to the assigned obligations.
(a) Third-Party Products. Where Seller is not the manufacturer of a product, Seller will either (i) pass through to Buyer the manufacturer's warranty, if any, with respect to such product, or (ii) permit Buyer to, at Buyer's expense, exercise Seller's rights under such manufacturer warranty, if any. SELLER MAKES NO WARRANTY WITH RESPECT TO THIRD-PARTY PRODUCTS.
(b) Seller-Manufactured Products. Seller warrants that each product supplied under these Terms that is manufactured by Seller will, for 12 months (90 days in the case of spare parts) after delivery to Buyer or such shorter time as the nature of the product (including, but not limited to, consumability) reasonably implies (the "Warranty Period"), conform to Seller's written then-current specifications during normal use and/or operation. Seller's sole and exclusive obligation, and Buyer's sole remedy for failure of any product to conform to the above warranty is, at the option of Seller, repair or replacement of the non-conforming product or a refund of the money paid by Buyer for the non-conforming product. Buyer must notify Seller in writing during the Warranty Period of any failure by a product to conform to the above warranty. Buyer will pay for shipping of any non-conforming product to Seller and Seller will pay for return shipping to Buyer. Liability under this warranty will be reduced to the extent that: (1) the product is not maintained according to Seller's specifications, (2) the product fails, malfunctions, or is damaged as a result of improper handling, improper storage conditions (including, but not limited to, where applicable, temperature and humidity), installation, maintenance, removal, modification or repair, (3) the nonconformity is caused by casualty, abuse, or improper use, (4) the product is altered other than by Seller or with Seller's express written approval, (5) the product is installed, used, or configured other than as contemplated by the parties under the applicable Supply Agreement or at or in a place other than that contemplated by the parties under the applicable Supply Agreement, (6) the product is used, operated, or connected with a third-party good or software not expressly designated by Seller's documentation and specifications for the product, or (7) any failure results from a design or specification supplied by Buyer.
12. Product Returns. Buyer may not return any product unless Seller approves in writing the return. Upon Seller's request, Buyer will provide to Seller samples of products alleged by Buyer to be eligible for return. All return documentation must contain Seller's Returned Materials Authorization ("RMA") number. Seller may refuse returned shipments not approved by Seller or not properly identified. The request for return approval must include serial number, part number, lot number, and date code (each as applicable), and full identification of products to be returned. Proper handling procedures must be used in the packing and shipping of all returns. Products must be returned in the same or equivalent container in which they were shipped with the RMA number clearly visible on the package. Buyer retains title and assumes all risk of loss relating to products returned for repair or replacement until Seller completes repair or identifies products as replacements.
13. Disclaimers and Limitation of Liability.
(a) EXCEPT AS EXPRESSLY DESCRIBED IN SECTION 11, ALL GOODS, SERVICES, AND/OR SOFTWARE DELIVERED UNDER ANY SUPPLY AGREEMENT ARE SUPPLIED "AS IS" AND WITH ALL FAULTS. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS, SERVICES, AND/OR SOFTWARE AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
(b) NOTWITHSTANDING ANYTHING IN ANY SUPPLY AGREEMENT OR OTHERWISE TO THE CONTRARY, SELLER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS) ARISING FROM, OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE POSSESSION, USE, OR TRANSFER OF ANY GOOD, SERVICE, AND/OR SOFTWARE BY BUYER OR ANY CUSTOMER OR SUCCESSOR HOLDER (INCLUDING, BUT NOT LIMITED TO, ANY END USER) OF ANY GOOD, SERVICE, AND/OR SOFTWARE; BY THE PERFORMANCE OR FAILURE OF SELLER TO PERFORM UNDER THESE TERMS; BY ANY OTHER ACT OR OMISSION OF SELLER; OR BY ANY OTHER CAUSE. IN NO EVENT WILL SELLER'S TOTAL LIABILITY TO BUYER FOR ANY CLAIM EXCEED THE SUM PAID TO SELLER BY BUYER FOR THE GOODS, SERVICES, AND/OR SOFTWARE IN CONNECTION WITH WHICH THE CLAIM ARISES.
(c) NO ACTION MAY BE BROUGHT BY BUYER FOR ANY BREACH OF THESE TERMS MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
(d) THESE LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING THAT SELLER KNEW, OR HAD REASON TO KNOW, OF THE POSSIBILITY OF ANY PARTICULAR KIND OF DAMAGES AND NOTWITHSTANDING THAT ANY SUCH LIMITATION CAUSES A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
14. Indemnification. Buyer will defend, indemnify, and hold harmless Seller and its employees, officers, directors, agents, affiliates, successors and assigns from and against any and all claims, suits, actions, demands, damages, losses, liabilities, penalties, fines, costs and expenses (including, without limitation, attorneys' fees) whatsoever that are incurred by or made against any indemnitee that arise out of or result from (i) the acts, omissions, negligence or misconduct of Buyer, (ii) any claim by any successor holder (including, but not limited to, any end user) of any of the products, or any other person or entity, related to the products sold by Seller, or the purchase, installation, or use of such products, or any undertakings, acts or omissions relating to such products, to the extent such claim is not based upon a breach of an express warranty of Seller, or (iii) any Buyer breach of any obligation in Section 18.
15. Fail-Safe or Critical Operations. Seller's products are not designed, intended, authorized, or warranted to be suitable for use or resale as control equipment in, or for other applications related to, hazardous or critical environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support, weapons systems, or other application in which the failure of a product could lead to death, personal injury, or severe physical or environmental damage. Buyer will not use or permit to be used the purchased products for such fail-safe or critical applications, and further agrees to indemnify Seller and its employees, officers, directors, agents, affiliates, successors and assigns against all actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorneys' fees, arising out of any breach of Buyer's obligations in this Section 15.
16. Confidentiality. Buyer will, notwithstanding that any Supply Agreement may have expired or been terminated or cancelled, keep in confidence and prevent the disclosure to any person all information and data disclosed to it by Seller that is marked confidential or by its nature ought to be considered confidential, including, but not limited to, quotes, business plans, technological techniques, prints, inventions, and research and development. Notwithstanding the foregoing, Buyer will not be liable for disclosure of any confidential information if the same: (i) is or becomes readily ascertainable by the public by proper means without breach by Buyer of any obligation to Seller of confidentiality; (ii) is disclosed with the prior written approval of Seller; or (iii) becomes known to Buyer from a source other than Seller without breach of these Terms by Buyer or breach by the source of any obligation of confidentiality. Seller will have no obligation of confidentiality or non-use with respect to information that Seller receives from buyer unless such obligations are established in a separate written confidentiality agreement signed by Seller.
17. Intellectual Property. Except as expressly and particularly set forth in a separate written agreement signed by Seller, Buyer will obtain no right whatsoever in any copyright, patent, trademark, trade secret, mask work, or other intellectual property right of Seller or that Seller creates, originates, discovers, or reduces to practice, or in which Seller acquires author or other rights, whether in consequence of these Terms, any Supply Agreement, any transaction or dealing between Seller and Buyer, or otherwise. Seller reserves all such rights to itself. The parties acknowledge that, absent a specific and separate written and signed agreement between the parties expressly granting rights to Buyer, no Supply Agreement is intended to require that Seller perform any development work for Buyer or create for Buyer any work of authorship, invention, or other matter in which proprietary rights exist.
18. Export Controls. Unless an appropriate license, exemption or similar authorization has been duly obtained, Buyer shall not, nor shall Buyer authorize or permit its employees, agents, successors or assigns to, export or re-export any products to any country identified as a prohibited destination by any applicable laws or regulations. Furthermore, Buyer hereby agrees to undertake and perform all "denied party screening" or similar obligations imposed by or arising under applicable laws or regulations. Buyer agrees and acknowledges that, to the extent applicable, these commodities, technology and/or software will be/were exported from the United States or other country of origin solely in accordance with the United States Export Administration Regulations or other export regulations applicable in the jurisdiction of origin. Any diversion contrary to U.S. or other applicable law is prohibited.
19. End-of-Life Disposition. Buyer will, or will require Buyer's successor owner of the product(s) to, at Buyer's or the successor's own expense, properly dispose of the products according to any applicable law.
20. Governing Law; Jurisdiction; Venue; Severability. These Terms and all Supply Agreements will be governed by and construed in accordance with the laws of the State of Texas without regard for their conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms or any Supply Agreement. Any action or claim arising out of or related to these Terms or any Supply Agreement may be brought only in the courts of the State of Texas sitting in Dallas County, Texas or the United States District Court for the Northern district of Texas and Seller and Buyer each irrevocably consent to the jurisdiction of, and venue in, such courts. If any provision of any Supply Agreement is illegal or unenforceable such provision will be reformed to, insofar as is possible, permit it to confirm with applicable law and, in any case, the remaining provisions will continue in full force and effect.
21. Use of Products. Buyer shall use, and require its employees, contractors, and agents to use, all available safety precautions, in addition to any specifically set forth in any manuals, material safety data sheets, technical data sheets, instruction sheets, if any, furnished by Seller (or available from raw material suppliers) relating to Seller's products. If Buyer does not receive any required material safety data sheets for any product from Seller, Buyer will request them from Seller. If Buyer fails to strictly observe each and every one of the obligations set forth in this Section 21 or if Buyer's use of any of Seller's products is in violation of any standard or rule of the American National Standards Institute or Occupational Health and Safety Act, or other applicable workplace law, regulation, or standard, Buyer will indemnify, defend, and hold harmless Seller and Seller and its employees, officers, directors, agents, affiliates, successors and assigns from and against any and all claims, demands, damages, actions, and causes of action, as well as any and all liability, loss, or expense of any kind, including reasonable attorneys' fees arising from, connected with or in any way pertaining to any such failure by Buyer.
22. Notification. Buyer shall notify Seller promptly, and in any event within 30 days, after any accident or failure involving Seller's products that results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining causes of such accident or failure.
23. Attorneys' Fees and Costs. Buyer will pay Seller's reasonable attorneys' fees and other costs and expenses for any legal or equitable action undertaken by Seller to enforce these Terms or the provisions of any Supply Agreement.
24. Errors. Any and all typographical or clerical errors made by Seller in these Terms, in Seller's quotations or communications, or in any Supply Agreement are subject to correction by Seller.
25. Force Majeure. Seller will not be liable for failure to deliver, or for delay in delivery of, the products to the extent arising out of or related to causes beyond its reasonable control, including, without limitation, acts of God or of the public enemy, acts of any governmental authority, fires, floods, other casualties, severe weather, epidemics, quarantine restrictions, strikes, labor disputes or shortages of labor, embargoes, wars, riots, civil commotion, shortage of rail cars or semi-tractors and trailers, delays in transit or inability to secure necessary parts or materials (whether at all or at commercially reasonable prices). In no event will Seller be liable for any loss or damage, including in particular, direct, incidental, indirect, special, punitive or consequential damages (including loss of profits) due to any failure to deliver or delay in delivery. If Seller is wholly or partially unable to perform because of any cause beyond its reasonable control, Seller may allocate production and deliveries among Seller's customers or may terminate the Supply Agreement without any further liability to Buyer.
26. Remedies Cumulative. All rights and remedies of Seller under these Terms and any Supply Agreement are cumulative. No pursuit or receipt by Seller of any particular remedy will constitute an exclusive election of remedies and Seller will have the benefit of all remedies available at law, in equity, or otherwise.
27. Cross-Default. Any default by Buyer under any other agreement to which Seller or any Seller affiliate is a party will be a default by Buyer under these Terms and of each Supply Agreement. Such other agreements may, where applicable, be (but are not limited to), distributor or similar agreements.
28. Software License. Buyer may use such software (including firmware) as is installed on the products or provided by Seller with the products, solely for Buyer's own use and operation of the associated product(s). Buyer may not (a) copy any software except (i) as necessary to use the products purchased under a Supply Agreement or (ii) to make a backup that is never used in production when a primary copy of the software is available to Buyer for use, (b) decompile, disassemble, decrypt, or reverse engineer the software or attempt to derive the source code for any part of the software, (c) encumber any right in the software in favor of a third party, whether by agreement, operation of law, or otherwise, (d) Remove from the software or associated documentation any product identification or proprietary rights notices, (e) sell, lease, lend, or sublicense the software or the documentation to any third party, (f) use the software for timesharing or service bureau purposes, (g) modify or create derivative works of the software (except that Buyer's code written to published APIs for the software will not be deemed a derivative work), or (h) publish or disclose to any third party the results of any benchmark tests or other evaluation run on the software without the prior written consent of Seller.
29. Certain Licenses; Party-Skipping. Seller's licensing arrangements with regard to software or rights in other intellectual property associated with one or more products may require that licenses be distributed only to end users of the products sold under a Supply Agreement. Accordingly, if Buyer purchases any product(s) for resale, certain licenses will not accrue to, or benefit, Buyer itself. Buyer waives any and all objections to such arrangements, provided only that licenses to use the affected intellectual property are effective as to the end users of the affected products.
30. Third Parties. Except for the indemnitees under the indemnification obligations contained in these Terms (each of whom is an express third-party beneficiary of such indemnification obligations), there are no third-party beneficiaries of any right or obligation under these Terms or any Supply Agreement.
31. Third-Party Terms. Under no circumstances will Seller be obliged or liable to Buyer or to any third party with respect to any representation, warranty, covenant, duty, or liability to any third party, whether as part of a "directed sourcing" arrangement or otherwise. Without limiting the foregoing, Seller expressly disclaims and rejects any obligation of any kind to comply with any terms or conditions of Buyer's direct or indirect customer(s), regardless of any obligation to such persons taken on by, and/or imposed upon, Buyer and regardless of whether Seller is aware of any such requirement upon Buyer. Seller will be liable to any third party, if at all, solely according to such separately negotiated, written, and signed agreement, if any, as Seller actually negotiates and executes with such third party.
32. Resale; Flow-Down. Buyer will not resell or otherwise transfer any goods, services, or software provided under any Supply Agreement to any third party unless the terms of such resale or other transfer limit the liability of Buyer (as seller/transferor) and Seller to an extent at least as great as the limitations in the Supply Agreement under which buyer acquired such goods, services, and/or software from Seller. If buyer breaches this obligation, Buyer will indemnify, defend, and hold harmless Seller and Seller's direct and indirect parents, subsidiaries, members, managers, directors, officers, employees, dealers, agents, and affiliates from and against any third-party claim to the extent that such claim could reasonably have been averted, defeated, or mitigated by Buyer's performance of such obligation.
33. Entire Agreement. These Terms, together with any specific terms contained in any Supply Agreement, any separate written and signed distributor agreement, and any separate written confidentiality agreement between the parties, embody the entire agreement between the parties with regard to the subject matter hereof and thereof and supersede all other prior agreements between the parties with regard to such subject matter. Neither these Terms nor any Supply Agreement may be modified, except in writing and signed by the party against whom enforcement is sought.
Global Warranty Statement
Eltek warrants to the customer that Eltek’s products will be free from defects in materials and workmanship at the time of shipment and will be in accordance with specifications, which are made part of the sales contract. Eltek’s warranty applies under the following terms and conditions:
1. The warranty extends for a period of twelve (12) months from date of shipment of the products (unless otherwise mutually agreed between the parties in a separate contract).
2. Eltek’s sole obligation and liability under this warranty is limited to either repairing or replacing defective products or refunding the purchase price for the defective products (prorated for the period of use), at Eltek’s sole option. When repairing or replacing the products, Eltek may use products or parts that are new, equivalent to new or re-conditioned. All duties, tariffs and customs are the sole responsibility of the customer.
3. This warranty extends only to, and is only intended for the benefit of the customer (original purchaser), and does not obligate Eltek and shall not be construed to constitute a warranty by Eltek to any natural or legal person other than the customer.
4. The customer shall at its own risk and cost return defective products or parts of products to Eltek’s repair centre, promptly upon customer’s discovery of the defect in question. Return of the products after repair shall be prepaid by the customer unless otherwise mutually agreed between the parties. If the purchaser requires the repair to be performed outside Eltek's repair center, the customer shall pay the applicable additional cost.
5. Parts repaired or replaced during the warranty period will be under warranty for the remainder of the warranty period.
6. Eltek shall not be liable and the customer shall have no rights or benefits under this warranty if any of the following conditions apply:
a. The product has not been installed, maintained or operated in accordance with the documentation provided by Eltek for that purpose.
b. The product has not been installed or maintained according to the Requirements for Surge Protection, ref. Eltek document no. 2024623.
c. The product has not been installed or maintained according to the Requirements for Environmental Protection, ref. Eltek document no. 2038879.
d. The product has been subjected to misuse, neglect, accident, exposure to environmental conditions not conforming to the product’s specified limits of operation, improper handling or transportation (claims to be handled by consignee), improper installation or maintenance (e.g. use of components), or has been altered, modified or repaired by anyone other than Eltek or its authorized representative.
e. The product has been damaged as a result of a) normal wear and tear, b) rough handling (including without limitation, defects caused by sharp items, by impact pressure, by collision with an object etc.), c) battery leakage, d) improper use of an electrical source, e) a force majeure event or f) other acts beyond the reasonable control of Eltek.
f. The product serial number plate has been removed, defaced or altered, or the warranty seal has been broken (where applicable).
g. The product has been subjected to theft or vandalism.
h. The software included in the product has been damaged by computer or internet viruses, including but not limited to: bugs, worms, Trojan Horses, cancel bots or damage caused by the connection to other products not recommended for interconnection by Eltek.
i. The product has been operated beyond rated capacity, operated outside of the product specifications, or used with parts which are not made or recommended by Eltek.
7. Third party products and services are sold “as-is” without a warranty from Eltek, but may be covered under the manufacturer’s pass-through warranty.
8. In no event shall Eltek in contract, tort or according to law be liable for any special, indirect or consequential damages such as, but not limited to, loss or corruption of data, loss of use, loss of business or goodwill, loss of revenue, loss of profits, which may result, either directly or indirectly, from defects in products provided by Eltek.
9. Eltek grants an extended corrosion warranty against rust-through perforation of cabinets which is valid for 3 years from date of shipment. As used herein, “Rust-through perforation” means that the primary functions of the cabinets, being protection of the installed cabinet and mechanical strength and capacity, have significantly deteriorated.
10. Eltek makes no other warranties to the customer, either express or implied with respect to the products and services.