1. SCOPE
The Terms and Conditions (“Terms”) contained herein shall apply to allquotations and offers made by, and purchase orders accepted by YD Ynvisible, S.A.and Ynvisible Production AB (collectively, the "Group Companies",hereinafter YNV). These Terms apply to all sales made by YNV except to theextent the Terms conflict with a Sales Agreement signed by YNV and Buyer. TheseTerms apply in lieu of any course of dealing between the parties or usage oftrade in the industry. These Terms may in some instances conflict with some ofthe terms and conditions affixed to the purchase order or other procurementdocument issued by the Buyer. In such case, the Terms contained herein shallgovern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptanceof the terms and conditions herein, irrespective of whether the Buyer acceptsthese conditions by a written acknowledgement, by implication, or acceptance andpayment of products ordered hereunder. YNV’s failure to object to provisionscontained in any communication from Buyer shall not be deemed a waiver of theprovisions herein. Any changes in the Terms contained herein must specificallybe agreed to in writing by the parties before becoming binding on either party.
2. PRICE, TAXES AND QUOTATIONS
Prices are subject to change with thirty (30) days notice to Buyer. Any order that can be cancelled and/orrescheduled pursuant to paragraphs 6(a), 12(d),13(a) or 14(b) is subject to a pricechange immediately. All prices are exclusive of any present or future sales,revenue or excise tax, value added tax, turnover tax, import duty (includingbrokerage fees) or other tax applicable to the manufacture or sale of any product.Such taxes, when applicable, shall be paid by Buyer unless Buyer provides aproper tax exemption certificate. Unless otherwise agreed to in writing by theparties, prices quoted by YNV are those current at the date of quotation andshall be subject to variation by YNV. All quotations provided by YNV are validfor a period of thirty (30)days from the date of issuance, unless otherwise agreed to in writing on a YNVquotation or statement of work.
3. DELIVERY
Unless otherwise agreed to in writing, sales are EXW origin. YNV isresponsible for making the goods available at its premises, and the Buyer isresponsible for all costs and risks associated with loading and transportingthe goods from YNV premises.
Unless otherwise agreed to in writing, delivery time is not of theessence. Except as specified in 6(b) or in case of willful misconduct or grossnegligence, YNV does not accept liability for any loss arising from delay indelivery of products.
4. PAYMENT TERMS
Payment terms shall be defined in writing on a YNV quotation orstatement of work. The Buyer agrees to pay interest on any unpaid balance atthe late payment interest rate established by law in the jurisdiction of theentity issuing the invoice. Unless otherwise agreed to in writing, all paymentsare to be in Euros. YNV may require payment to be secured by an irrevocableletter of credit or a bank guarantee acceptable to YNV. Where payment is madeby letter of credit, all costs of collection shall be for Buyer’s account. Inthe event that YNV is required to bring legal action to collect delinquentaccounts, Buyer agrees to pay reasonable attorney’s fees and costs of suit.
5. NON-CONFORMING DELIVERY AND RISK OF LOSS
Buyer shall notify YNV of any visible defects, quantity shortages orincorrect product delivery within eight (8) days of receipt of the products.Failure to notify YNV in writing of any visible defects in the products or ofquantity shortages within such period shall be deemed an unqualified waiver ofany rights to return products on the basis of visible defects or shortages,subject to Buyer’s rights under Section 7. YNV shall retain a security interestin the products until Buyer’s final payment for the products. Risk of loss andtitle shall pass to Buyer as soon as the products are made available at YNVpremises.
6. ORDER CANCELLATION AND RESCHEDULING
(a) Buyer’s Cancellation: Unless otherwise agreed to in writing on a YNVquotation or statement of work, Buyer may not cancel any order, except asestablished in paragraphs 12(d),13(a) and 14(b). Buyer may reschedule anorder more than thirty (30) days prior to the Confirmed Delivery Date and notfor more than ninety (90) days from the originalConfirmed Delivery Date, with YNV’s written approval. In case of cancellationor rescheduling, Buyer shall accept delivery of all such products which arecompleted at the time of cancellation or rescheduling. Those products which arein the work-in-process inventory at the time of cancellation or rescheduling,shall be paid for by Buyer at a price equal to the completed percentage of theproduct multiplied by the price of the finished product. Buyer shall also paypromptly to YNV the costs of settling and paying claims arising out of thetermination or delay of work under YNV’s subcontracts or vendors and anyaccounting, legal, and clerical costs arising out of the cancellation orrescheduling. Holding of inventory due to attempted cancellation, rejection ornon-acceptance of product will be subject to interest using the terms in Section4.
(b) YNV’s Cancellation: YNV shall have the right to cancel any unfilledorder without notice to Buyer in the event that Buyer becomes insolvent,adjudicated bankrupt, petitions for or consents to any relief under anybankruptcy reorganization statute, or becomes unable to meet its financialobligations in the normal course of business. Any order that can be cancelledor rescheduled by Buyer pursuant to paragraphs 6(a), 12(d), 13(a) and 14(b),may be cancelled or rescheduled by YNV, subject to written notice sent toBuyer.
7. LIMITED WARRANTY
Except as specified below, products sold hereunder shall be free fromdefects in materials and workmanship and shall conform to manufacturer’spublished specifications or other specifications accepted in writing by YNV fora period of one (1) year from the date of delivery of the products, unlessotherwise agreed to in writing on a YNV quotation or statement of work. Theforegoing warranty applies to products used for commercial applications only,unless otherwise specified in the Buyer’s purchase order, and does not apply toany products which have been subject to misuse, neglect, accident ormodification, or which have been soldered or altered such that they are notcapable of being tested under normal test conditions. YNV’s sole obligation forproducts failing to comply with this warranty shall be, at its option, toeither repair, replace or issue credit for the nonconforming product where, bythe expiration of the warranty period, (i) YNV has received written notice ofany nonconformity; (ii) after YNV’s written authorization, Buyer has returnedthe nonconforming product to YNV; and (iii) YNV has determined that the productis nonconforming and that such nonconformity is not the result of improperinstallation, repair or other misuse. THE FOREGOING WARRANTY AND REMEDIES AREEXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED,IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR APARTICULAR PURPOSE. YNV DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUMEFOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. Buyer shall passthis warranty to any third-party purchaser of YNV products.
8. LIMITED LIABILITY
(a) Neither YNV nor Buyer shall be liable for incidental orconsequential damages, including but not limited to, the cost of labor,requalifications, rework charges, delay, lost profits, or loss of goodwillarising out of the sale, installation or use of any YNV product. Save for thecases of willful misconduct or gross negligence, if YNV has any liability forbreach of contract, breach of any implied condition, warranty orrepresentation, the aggregate liability of YNV to Buyer shall be limited inrespect of any occurrence or series of occurrences to the contractual value ofthe products or services that are the subject of the contract.
(b) YNV assumes no liability for the sale of obsolete parts which may ormay not be refurbished, unless otherwise noted in the buyer’s purchasingdocument and acknowledged by YNV, in writing.
9. INTELLECTUAL PROPERTY
YNV retains all Intellectual Property of products supplied to Buyer: thesale of any products hereunder does not convey any license by implication,estoppel or otherwise covering combinations of the products with otherequipment data or programs. YNV retains the copyright in all documents,catalogs and plans supplied to Buyer, pursuant to or ancillary to the contract.Unless otherwise agreed to in writing, Buyer shall obtain no interest in anytooling, art work, design, schematic, process, method or trade secret used inthe production of any YNV product. Buyer agrees to not reverse engineer orattempt to copy YNV products themselves or through a third party, or supply YNVproduct to any company where the purpose is to obtain YNV’s intellectualproperty through the use or examination of YNV products.
10. LIFE SUPPORT
YNV’s products are not authorized for use as critical components in lifesupport devices or systems without the express written approval of YNV. As usedherein: (a) life support devices or systems are devices which (i) are intendedfor surgical implant into the body, or (ii) directly support or sustain life,and whose failure to perform when properly used can be reasonably expected toresult in significant injury to the user; (b) a critical component is anycomponent in a life support device or system whose failure to perform can bereasonably expected to cause the failure of the life support device or systemor to affect its safety or effectiveness.
11. CONFIDENTIAL INFORMATION
Except as required by law, neither party shall use (except for purposesconnected with the performance of its obligations hereunder), divulge orcommunicate to any third party any information of the other it reasonably knowsto be confidential. The confidentiality covers all technical andcommercial information that comes to the Buyer’s knowledge by virtue of the businessrelationship between the Buyer and YNV.
12. FORCE MAJEURE
(a) YNV shall not be liable forany damage or penalty for delay in delivery or for failure to give notice ofdelay when such delay is due to the elements, by way of example only, acts ofGod, acts of the Buyer, acts of civil or military authority, wars, fires,explosions, floods, earthquakes, accidents, riots, concerted labor actions,shortages of materials, or any other causes beyond the reasonable control ofYNV (“Force Majeure Events”). The anticipated delivery date shall be deemedextended for a period of time equal to the time lost due to any delay excusableunder this provision. In case of a Force Majeure Event, YNV shall be entitled,but not obligated, to subcontract its services from a third party.
(b) A Force Majeure Eventaffecting YNV shall also be deemed to exist where YNV´s sub-suppliers areaffected by any of the Force Majeure Events. No Force Majeure Event can beinvoked for the obligation of the Buyer to pay in due time.
(c) YNV shall notify the Buyer inwriting as to the nature and probable duration of the Force Majeure Event.
(d) If the Force Majeure Eventcontinues for an uninterrupted period of ninety (90) days, the Buyer may cancelthe order by notifying YNV in writing, subject to payment by the Buyer of all order-fulfillmentcosts incurred by YNV until the notification date, as established in paragraph6(a).
13. INSOLVENCY
(a) Insolvency of YNV: Inthe event that any of the Group Companies becomes insolvent or becomes thesubject of any bankruptcy, receivership, or similar proceeding, the Buyer shallhave the following rights:
(b) Notice Requirement: Both YNVand the Buyer shall promptly notify the other party in writing upon becomingaware of any event or proceeding that may lead to insolvency or bankruptcy.
14. SALE OF BUSINESS
(a) Continuity: In the event thatany of the Group Companies undergoes a sale, merger, or transfer of all orsubstantially all of its assets or equity to a third party ("SuccessorEntity"), these Terms, including all rights and obligations herein, shallbe automatically assigned to and assumed by the Successor Entity. YNV shallprovide the Buyer with written notice of such sale, merger, or transfer within thirty(30) days of its occurrence.
(b) Buyer’s Rights: Uponreceiving notice of the sale, merger, or transfer, the Buyer shall have theright to:
(c) Successor Entity’sObligations: The Successor Entity shall honor all warranties, servicecommitments, and other undertakings made by YNV prior to the sale.
(d) Limitation of Liability: Thesale, merger, or transfer of YNV shall not affect the Buyer’s rights to seekremedies for any breaches of these Terms that occurred prior to the sale.However, the Successor Entity shall not be liable for any claims, liabilities,or obligations that arose before the effective date of the sale, except to theextent that they are expressly assumed by the Successor Entity as part of thesale transaction.
15. NOTICES
Any notice hereunder shall be deemed to have been given if sent byprepaid first class mail to the party concerned at its last known address.Notice to YNV shall be to the sales office in Portugal:
YDYNVISIBLE, S.A.
RuaQuinta do Bom Retiro 12C
2820-690Charneca da Caparica
PORTUGAL
E-mail:admin@ynvisible.com
16. WAIVER
Failure by YNV to exercise or enforce any rights hereunder shall not bedeemed to be a waiver of any such right nor operate so as to bar the exerciseor enforcement thereof at any time or times thereafter.
17. ENTIRE AGREEMENT
These Terms constitute the entire agreement between the parties relatingto the subject matter herein and supersede all prior and contemporaneousagreements, representations and understandings. No waiver or amendment hereofshall be binding unless signed in writing by the parties. If any term orprovision herein is held invalid or unenforceable, the remainder of these Termswill not be affected and will be valid to the fullest extent permitted by law.Any statute, rule or doctrine regarding the interpretation of contracts againsta particular party shall not apply hereto.
18. APPLICABLE LAW
Unless otherwise agreed to in writing, the terms and conditionscontained herein shall be governed by and construed under the laws of Portugal.