Vexos Terms and Conditions of Sale: Manufacturing Services
1. DEFINITIONS; USE. Capitalized terms not defined within the text hereof have the meanings set forth in Section 12.10 hereof. These terms and conditions apply to manufacturing services only.
2. TERMS AND CONDITIONS. If delivered in connection with a quotation (a “Quote”), these Terms and Conditions are incorporated therein by reference and constitute Vexos’ offer to manufacture and sell the Products to Buyer and become a binding contract upon Buyer’s acceptance by issuance of a purchase order or conduct. If delivered in connection with Vexos’ acceptance of a Buyer purchase order (an “Acceptance”), these Terms and Conditions are incorporated into such Acceptance by reference and constitute Vexos’ acceptance of Buyer’s offer to purchase the Products. Vexos’ offer to manufacture and sell the Product or acceptance of Buyer’s offer to purchase, as applicable, is expressly conditioned upon Buyer’s acceptance of all of the terms and conditions of purchase referenced in, contained on or attached to the Quote or Acceptance, as applicable. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS WHICH MAY APPEAR IN ANY COMMUNICATION FROM BUYER, WHETHER SENT PRIOR TO, CONTEMPORANEOUSLY WITH OR AFTER THE QUOTE OR ACCEPTANCE IS DELIVERED, ARE HEREBY EXPRESSLY OBJECTED TO AND SHALL NOT BE EFFECTIVE OR BINDING UNLESS SPECIFICALLY AGREED TO IN WRITING BY VEXOS. NO SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY PRINTED FORM OF BUYER SHALL BECOME PART OF THE CONTRACT BETWEEN THE PARTIES DESPITE VEXOS’ ACCEPTANCE OF ANY PURCHASE ORDER OR DELIVERY OF PRODUCT UNLESS SUCH ACCEPTANCE SPECIFICALLY RECOGNIZES AND ASSENTS TO THEIR INCLUSION AND IS SIGNED BY AN AUTHORIZED AGENT OF VEXOS. Buyer’s purchase order is solely for the purpose of evidencing Buyer’s binding commitment to purchase and identifying the Ordering Terms and shall be deemed subject to and incorporated into the Quote or Acceptance, as applicable, with all standard terms and conditions of such Buyer’s form being disregarded. Any objection by Buyer to the Quote or Acceptance, as applicable, including the terms and conditions hereof, shall, at Vexos’ election, be deemed a rejection of the Order. Each Order is a binding, non-cancelable purchase commitment.
3. MANUFACTURING SERVICES.
3.1. Engineering Changes. Vexos will proceed with requested engineering changes when the Parties have agreed in writing upon the changes to the Specifications, delivery schedule and Fees and, if required by Vexos, Buyer has issued and Vexos has accepted a revised purchase order.
3.2. Tooling; Non-Recurring Expenses. Buyer shall pay for or obtain and consign to Vexos any Product-specific tooling, equipment or software (together, “Tooling”) and other reasonably necessary non-recurring expenses. All software that Buyer provides to Vexos shall remain the property of Buyer. All Tooling paid for by Buyer shall remain its property at its sole risk of loss.
3.3 Specifications; Testing. The Specifications shall be determined by Buyer at its sole risk. Vexos has no duty to notify Buyer or any other person of any deficiency, known or suspected, with regard to any Specification. Buyer, at its sole risk, shall define and set forth in the Specifications all testing protocol, including sampling rates. Buyer represents and warrants that, except as expressly set forth in the Order, none of the Products shall be sold by Buyer (either individually or in combination with other materials) for use in an application for which the failure of the Product to perform as warranted under this Agreement could result in bodily harm, death or material damage to property or the environment. Specifications may not be changed without Vexos’ prior written consent, not to be unreasonably withheld.
3.4. Technical Standards; Tolerance. In the absence of contrary standards set forth in the Specifications, Vexos will make products in accordance with IPC 600C Class 2 standards for PCB’s and similar industry standards for other products. Each Order shall be subject to a tolerance of ten percent (10%) in yield and quantity.
4. FEES; PAYMENT. Buyer shall be responsible for all additional costs due to: (a) Specifications changes; (b) failure of Buyer or any supplier designated by Buyer to timely provide sufficient quantities or a reasonable quality level of Buyer Controlled Materials; (c) delays not caused by Vexos; or (d) Extraordinary Changes. All Fees are exclusive of federal, state, provincial and local excise, sales, use, VAT, and similar transfer taxes, and any duties, each of which shall be Buyer’s responsibility. Fees shall be based on the exchange rate(s) for converting the purchase price for Inventory denominated in the Parts Purchase Currency(ies) into the Functional Currency. Fees shall be adjusted, on a monthly basis based on changes in the Exchange Rate(s) as reported on the last Business Day (in New York) of each month, for the following month to the extent that such Exchange Rates change more than [+/-0.75%] from the prior month (the “Currency Window”). “Exchange Rate(s)” is defined as the closing currency exchange rate(s) as reported on Reuters’ page FIX on the last Business Day of the current month prior to the following month. “Functional Currency” means the currency in which all payments are to be made pursuant hereto. “Parts Purchase Currency(ies)” means U.S. Dollars, Japanese Yen and/or Euros to the extent such currencies are different from the Functional Currency and are used to purchase Inventory. Buyer shall pay all amounts due under this Agreement without set-off or withholding.
5. MATERIALS PROCUREMENT
5.1. Authorization to Procure Materials and Inventory. Each Order constitutes authorization for Vexos to procure Inventory to manufacture the Products based on applicable lead time and minimum order quantities.
5.2. Approved Manufacturers and Approved Vendors. Vexos shall acquire all Materials other than Production Materials from Approved Manufacturers and Approved Vendors unless no Approved Manufacturer or Approved Vendor is identified for a particular Material.
5.3. Buyer Controlled Materials. Buyer may direct Vexos to purchase Buyer Controlled Materials from a Designated Supplier. Vexos shall purchase Buyer Controlled Materials pursuant to terms and conditions negotiated between Vexos and the applicable Designated Supplier. Vexos shall not be responsible for substandard Buyer Controlled Materials or reasonable shrinkage due to machine setup process, yield, rework or repair. Buyer shall be responsible for any delays caused by changes to the Specifications or failure to provide sufficient quantities or quality of Buyer Controlled Materials.
5.4. Inventory Risk of Loss. Buyer alone shall bear all risk of loss for Inventory purchased by Vexos pursuant to this Agreement except to the extent caused by the willful misconduct or gross negligence of Vexos.
5.5. Materials Warranties. To the extent assignable, Vexos assigns to Buyer all supplier warranties. Vexos shall have no liability for the failure to obtain supplier warranties or non-conformance of third-party Materials.
6. SHIPMENTS; INVENTORY
6.1. Shipments. Vexos shall (a) deliver all Products suitably packed for shipment in accordance with the Specifications and marked for shipment to Buyer’s destination specified in the applicable Order; and (b) make such deliveries EXW (Ex-works, Incoterms 2010) Vexos’ facility (the “Shipping Point”). Title and all risk shall pass to Buyer upon delivery by Vexos to Buyer or its designated carrier or agent at the Shipping Point in accordance with the applicable Incoterm. All freight, insurance and other shipping expenses, as well as any packing expenses not included in the Quote, shall be paid by Buyer. In the event Buyer designates a freight carrier to be utilized by Vexos, Buyer agrees to designate only freight carriers that are currently in compliance with all applicable laws relating to anti-terrorism security measures and to adhere to the C-TPAT (Customs-Trade Partnership Against Terrorism) security recommendations and guidelines as outlined by the United States Bureau of Customs and Border Protection and to prohibit the freight carriage to be sub-contracted to any carrier that is not in compliance with the C-TPAT guidelines.
6.2. Late Delivery. Vexos will use commercially reasonable efforts to meet the agreed upon delivery dates. Buyer’s sole remedy and Vexos’ sole liability for late delivery, in addition to termination in accordance herewith, is that, to the extent that such delivery delay is due solely to causes within Vexos’ control, Vexos shall pay the fees to expedite the delivery of the affected Product.
6.3 Inventory. Vexos may purchase MOQ Inventory in reliance on binding or non-binding forecasts provided by Buyer. Buyer shall be financially responsible for all MOQ Inventory. Buyer shall purchase from Vexos all unused MOQ Inventory and Obsolete Inventory, inclusive of a 15% margin. On a monthly basis Buyer shall purchase from Vexos all Excess Inventory that has been Excess Inventory for at least 30 days, all Obsolete Inventory, and all Aged Inventory that has been Aged Inventory for at least 30 days, inclusive of a 15% margin. Vexos shall use commercially reasonable efforts for a period not to exceed 15 days to return such Inventory. Vexos shall ship such Inventory to Buyer upon payment by Buyer. In the event Buyer does not pay for such Inventory within 60 days following the invoice date, Vexos may dispose of such Inventory and credit to Buyer any monies received therefor. Buyer shall be responsible for all shipping costs. Products that have been ordered by Buyer and that have not been picked up in accordance with the agreed upon shipment dates shall be considered cancelled and Buyer shall be responsible for such Products in the manner set forth in this section. In the event Vexos consents to any cancelation, in part or in whole, Buyer shall pay for all MOQ Inventory, Aged Inventory or Obsolete Inventory, all work in process and all unamortized tooling costs.
7. PRODUCT ACCEPTANCE AND LIMITED WARRANTY
7.1. Product Acceptance. Buyer shall inspect the Products within 10 days following delivery to the Shipping Point. Buyer may reject only Defective Products and only by written notice to Vexos received within such inspection period. Products not properly rejected during such inspection period shall be deemed accepted. Within 10 days following the later receipt of such notice or samples if requested, Vexos shall accept such claim, and provide return material authorization instructions, or deny such claim with specific detail. Buyer may return properly rejected Defective Products via pre-paid freight after delivering a complete written failure report to Vexos and obtaining a return material authorization number from Vexos. Defective Products rejected and returned to Vexos in accordance herewith shall be promptly repaired or replaced, at Vexos’ option, and returned freight pre-paid.
7.2. Limited Warranty. This Section 7.2 sets forth Vexos’ sole and exclusive warranty and Buyer’s sole and exclusive remedies.
(a) Vexos warrants that the Products shall be manufactured in accordance with the applicable Specifications and shall be free from defects in workmanship for a period of 12 months days from the date the Products are made available at the Shipping Point. This warranty does not apply to, and Vexos makes no representations or warranties whatsoever with respect to: (i) Materials; (ii) defects resulting from the Specifications; (iii) Product that has been abused, damaged, altered or misused following delivery; (iv) first articles, prototypes, pre-production units or test units; (v) defects from Tooling, designs, software, testing or instructions supplied by Buyer; (vi) compliance of Materials or Products with any law, rule, regulation or other legal requirement not set forth in the Specifications; and (vii) defects that would have been identified had the Specifications included suitable testing protocol. (Together, the “Limited Warranty”.)
(b) Warranty claims must be made within 60 days after the warranty period and must be in writing, specifying in reasonable detail the nature and basis of the claim and citing relevant control or lot numbers. Vexos’ sole obligation and Buyer’s sole remedy for breach of the Limited Warranty is repair or replacement, and if Vexos cannot repair or replace after making good faith efforts, then Buyer’s sole remedy shall be a refund of the applicable amounts paid to Vexos. Buyer shall return Products covered by this warranty freight prepaid after completing a failure report and obtaining a return material authorization number from Vexos.
7.3. No Representations or Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, VEXOS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION AS TO THE PERFORMANCE OF THE PRODUCTS, THE SPECIFICATIONS OR THIRD-PARTY MATERIALS, OR ANY OTHER WARRANTY, EXPRESS, IMPLIED, STATUTORY, AND VEXOS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT.
8. INTELLECTUAL PROPERTY. Buyer hereby grants Vexos a limited, non-exclusive license during the term of this Agreement to use Buyer’s IP Rights to manufacture the Products for Buyer. Buyer retains all right, title and interest to Buyer’s IP. Except as otherwise specifically provided in this Agreement, each Party acknowledges and agrees that no licenses or rights under any of the IP Rights of either Party or its Affiliates are given or intended to be granted expressly, by implication, or by estoppel.
9. TERM AND TERMINATION
9.1. Termination. This Agreement may be terminated by either Party (a) if the other Party defaults in any payment due hereunder or such Party or any Affiliate thereof defaults in any payment due under any other agreement with the terminating Party or any Affiliate thereof and such default continues without cure for a 30 days after written notice; (b) if the other Party defaults in the performance of any other material term or condition of this Agreement and such default continues unremedied for 30 days after written notice, provided that such period may be extended up to 30 days if such default cannot reasonably be cured within 30 days and the defaulting Party is using commercially reasonable efforts to cure; or (c) pursuant to Section 12.5. Vexos may cease performance hereunder if Buyer becomes the subject of any proceeding relating to insolvency or receivership.
9.2. Effect of Expiration or Termination. Expiration or termination of this Agreement under any of the foregoing provisions shall not affect the amounts due under this Agreement. Following termination the provisions of Section 6 shall apply with respect to payment and shipment to Buyer of remaining Products and Inventory. Termination and settling of accounts in the manner set forth in the foregoing sentence shall be the exclusive remedy of the Parties for breach of this Agreement, except for breaches of Section 7.2, 10.1, 10.2 or 11. Sections 1, 4, 6.4, 6.3, 10, 11, 12.9 and 12.10 shall survive termination. Termination of this Agreement as to any one Order shall not affect any other Order.
10. INDEMNIFICATION; LIABILITY LIMITATION
10.1. Indemnification by Vexos. Vexos agrees to defend, indemnify and hold harmless each Buyer Indemnitee from and against all third-party claims for Damages caused by or arising out of (a) any injury or damage to any person or property (other than the Product or any goods into which it is incorporated) caused by a Product sold by Vexos to Buyer hereunder, but only to the extent such injury or damage has been caused solely by the breach by Vexos of the Limited Warranty; provided that Vexos shall not have any obligation to indemnify if such claim would not have arisen but for Vexos’ manufacture, assembly or test of the Product in accordance with the Specifications; (b) any infringement of the IP Rights of any third party, but only to the extent that such infringement is caused solely by a process that Vexos uses to manufacture, assemble and/or test the Products; provided that Vexos shall not have any obligation to indemnify if such claim would not have arisen but for Vexos’ manufacture, assembly or test of the Product in accordance with the Specifications; or (c) noncompliance with any Environmental Regulations at Vexos’ place of manufacture; provided that Vexos shall not have any obligation to indemnify if such claim would not have arisen but for Vexos’ manufacture of the Product in accordance with the Specifications.
10.2. Indemnification by Buyer. Buyer agrees to defend, indemnify and hold harmless each Vexos Indemnitee from and against all third-party claims for Damages caused by or arising out of (a) any failure of any Product (and Materials contained therein) sold by Vexos hereunder to comply with any safety standards and/or Environmental Regulations to the extent that such failure has not been caused solely by Vexos’ breach of the Limited Warranty; (b) any actual or threatened injury or damage to any person, property or the environment caused, or alleged to be caused, by a Product, but only to the extent such injury or damage has not been caused solely by Vexos’ breach of the Limited Warranty; (c) any infringement of the IP Rights of any third person in connection with any Product except to the extent such infringement is the sole responsibility of Vexos pursuant to Section 10.1(b) above; or (d) any unlawful export of the Specifications or a breach of the representations or warranties set forth in Section 12.1 hereof.
10.4 No Other Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND ARISING, OR ANY DAMAGES WHATSOEVER FROM LOSS OF USE, DATA OR PROFITS RELATING TO THIS AGREEMENT OR THE PRODUCTS, WHETHER ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LOST PROFITS, DAMAGES RESULTING FROM VALUE ADDED TO THE PRODUCT BY CUSTOMER, COVER AND DOWNTIME COSTS SHALL BE CONSIDERED CONSEQUENTIAL DAMAGES. TO THE EXTENT PERMITTED BY LAW, VEXOS’ LIABILITY HEREUNDER SHALL NOT IN ANY EVENT EXCEED THE AMOUNTS RECEIVED BY VEXOS UNDER THE ORDER DURING THE 12-MONTH PERIOD PRECEDING THE EVENTS WHICH GAVE RISE TO THE CLAIM, AND IN NO EVENT MORE THAN ONE MILLION DOLLARS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. This section shall not affect Buyer’s obligation for termination payments or limit either party’s obligations under sections 10.1, 10.2 and 11. Sections 10 and 11 state the entire liability of the parties to each other concerning infringement of intellectual property rights. This Section 10.4 is independent of any other limitation of liability and reflects a separate allocation of risk from provisions specifying a party’s remedies.
11. CONFIDENTIALITY. Each Party shall refrain from using any and all Confidential Information of the disclosing Party for any purposes or activities other than those specifically authorized in this Agreement. Except as otherwise specifically permitted herein or pursuant to written permission of the Party to this Agreement owning the Confidential Information, no Party shall disclose or facilitate disclosure of Confidential Information of the disclosing Party to anyone without the prior written consent of the disclosing Party, except to its employees, consultants, parent company, and subsidiaries of its parent company who need to know such information for carrying out the activities contemplated by this Agreement and who have agreed in writing to confidentiality terms that are no less restrictive than the requirements of this section. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party pursuant to a subpoena or other court process only (i) after having given the disclosing Party prompt notice of the receiving Party’s receipt of such subpoena or other process and (ii) after the receiving Party has given the disclosing Party a reasonable opportunity to oppose such subpoena or other process or to obtain a protective order. Subject to each Party’s right to maintain copies of Confidential Information in accordance with such Party’s reasonable record-keeping requirements (and provided further that such information shall be used only as required by law or in connection with this Agreement), Confidential Information of the disclosing Party in the custody or control of the receiving Party shall be promptly returned or destroyed upon the earlier of (i) the disclosing Party’s written request or (ii) termination of this Agreement. Confidential Information disclosed pursuant to this Agreement shall be maintained confidential for a period of 3 years after the disclosure thereof, except that the existence and terms of this Agreement shall be confidential for 10 years. If the Parties are party to a separate confidentiality agreement, such agreement shall be deemed incorporated herein, to supersede the provisions hereof and, as applicable, amended such that the term thereof is no shorter than the term of this Agreement.
12.1. Export Controls. Buyer represents and warrants to Vexos that none of the Specifications are subject to any export controls of any nature, including without limitation International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR), or any other laws, rules or regulations that would impose liability on Vexos for unauthorized disclosure.
12.2. Entire Agreement; Severability. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the Parties relating thereto. If any term of this Agreement is to any extent invalid or unenforceable, it shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent possible, such term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
12.3. Amendments; Waiver; Independent Contractor. This Agreement may be amended only by written consent of both Parties. Neither Party shall be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of such Party. Vexos is an independent contractor and neither Party shall be deemed to be an agent of the other Party.
12.4. RoHS, REACH and Conflict Minerals. Notwithstanding anything in any Order or the Specifications to the contrary, Vexos does not warrant compliance with EU RoHS and REACH Directives or Conflict Minerals reporting requirements other than to the extent set forth in the written certifications delivered by Vexos to Buyer in connection with such Order.
12.5. Force Majeure. In the event that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to a Force Majeure event, and if such Party shall have used its commercially reasonable efforts to mitigate its effects, such Party shall give prompt written notice to the other Party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Regardless of the excuse of Force Majeure, if such Party is not able to perform within 90 days after such event, the other Party may terminate the Agreement.
12.6. Successors; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of the other Party, not to be unreasonably withheld. Notwithstanding the foregoing, Vexos may assign any or all of its rights and obligations under this Agreement to any Vexos Affiliate or in connection with a change in control of Vexos or a sale of substantially all of its assets. This agreement does not and is not intended to confer any rights or remedies upon any person other than the Parties.
12.7. Notices. All notices required or permitted under this Agreement will be in writing and will be deemed received when delivered personally; when manually acknowledged (i.e., not via a machine generated response) if sent by facsimile or email; 5 days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or if sent by a commercial courier, upon delivery. All communications will be sent to the addresses set forth in the Order.
12.8. Dispute Resolution. These terms and conditions shall be governed by the laws of New York. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. In Vexos’ sole discretion, any dispute, claim or controversy arising out of or relating to the breach, termination, enforcement, interpretation or validity of these terms and conditions, shall be determined by confidential binding arbitration to be held in New York City, New York before one arbitrator who has at least 10 years of experience in handling disputes similar to the dispute to be arbitrated hereunder and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules. Each Party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrator’s fees of arbitration; neither Party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless required by law; the decision of the arbitrator shall be final and binding on the parties, provided that, the arbitrator shall not have the authority to alter any explicit provision of these terms and conditions; judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
12.9. Construction. Each Order shall constitute an independent contract between the Parties. In the event of any conflict between these Terms and Conditions of Sale, the Specifications, an Order or the Ordering Terms (and subject to Section 2 hereof), such documents shall be interpreted in the following order: Ordering Terms, Order, Specifications, Terms and Conditions of Sale. Quotes and Orders may be issued to and executed by Vexos under the Vexos trade name and/or the legal name of the applicable Vexos Affiliate. This Agreement is in English only, which language shall be controlling in all respects. This Agreement may be executed in counterparts. A facsimile of this Agreement shall be deemed admissible for all purposes.
12.10. Definitions. “Affiliate” shall mean, with respect to any person, any other person that directly or indirectly controls, is controlled by, or is under common control with, such person. “Aged Inventory” shall mean any Inventory for which there has been insignificant consumption over the prior 90 days. “Agreement” shall mean, subject to Section 2 hereof, the Quote, these Terms and Conditions, the Order and the Ordering Terms. “Approved Manufacturer” shall mean a manufacturer identified on Buyer’s current approved manufacturer list. “Approved Supplier” shall mean an Approved Manufacturer or Approved Vendor, as applicable. “Approved Vendor” shall mean a vendor identified on Buyer’s current approved vendor list. “Business Day” means any day other than a legal holiday in the jurisdiction in which either of the Parties is located and the jurisdiction in which the Product is manufactured. “Buyer” means the buyer identified in the Quote or Order. “Confidential Information” shall mean (a) the existence and terms of this Agreement and all information concerning the unit number and fees for Products and Inventory/Special Inventory and (b) any other information that is marked “Confidential” or the like or, if delivered verbally, confirmed in writing to be “Confidential” within 30 days of the initial disclosure. Confidential Information does not include information that (i) the receiving Party can prove it already knew at the time of receipt from the disclosing Party; or (ii) has come into the public domain without breach of confidence by the receiving Party; (iii) was received from a third party without restrictions on its use; (iv) the receiving Party can prove it independently developed without use of or reference to the disclosing Party’s data or information; or (v) the disclosing Party agrees in writing is free of such restrictions. “Buyer Controlled Materials” shall mean those Materials provided by Buyer or by a Designated Supplier. “Damages” shall mean claims, actions, losses, expenses, damages or other liabilities, including reasonable attorneys’ fees and expenses. “Defective Products” shall mean Products not in compliance with the Limited Warranty. “Designated Supplier” shall mean a specific Approved Manufacturer or Approved Vendor designated by Buyer to supply Materials. “Environmental Regulations” shall mean any hazardous substance content laws and regulations including, without limitation, those related to the EU Directive 2002/95/EC about the Restriction of Use of Hazardous Substances (RoHS). “Excess Inventory” shall mean all Inventory and Special Inventory possessed or owned by Vexos that is not required for consumption to satisfy the next 90 days of demand for Products under the then-current Order(s). “Extraordinary Change” shall mean a change in facts or circumstances not anticipated in the determination of the Fees, including, without limitation, increases beyond normal variations in the market price of fuels, Materials, equipment, labor and other production costs, currency exchange rates, or changes in taxes, duties, laws, rules, regulations, court orders, administrative rulings or other governmental requirements (including, without limitation, mandatory wage increases); in each case as reasonably demonstrated by Vexos. “Fees” shall mean the fees set forth in the Order. “Force Majeure” shall mean an act of God, acts or decrees of governmental or military bodies, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, Materials unavailability, or any other cause beyond the reasonable control of the affected Party. “Indemnitee” shall mean, as applicable, a Party, and each of its affiliates, and all directors, officers, employees and agents, entitled to indemnification under this Agreement. “Indemnitor” shall mean a Party obligation to indemnify under this Agreement. “IP Rights” shall mean intellectual property rights, including, without limitation, patents, trade secrets and other intellectual property and all derivatives thereof. “Inventory” shall mean any Materials (other than Production Materials) acquired by Vexos to manufacture Products. “Limited Warranty” shall have the meaning set forth in Section 7.2(a). “Materials” shall mean components, parts and subassemblies that comprise the Product and that appear on the bill of materials for the Product, including without limitation Buyer Controlled Materials and Production Materials. “MOQ Inventory” shall mean materials purchased by Vexos in excess of requirements for an Order because of minimum order quantity requirements by suppliers. “Obsolete Inventory” shall mean Inventory or Special Inventory that is removed from the bill of materials for a Product by an engineering change oris no longer on an active bill of material for any of Buyer’s Products. “Order” shall mean Buyer’s purchase order, which shall be deemed to incorporate the Quote or Acceptance, as applicable, these Terms and Conditions and the Ordering Terms and be subject to Sections 2 and 12.9 hereof. “Ordering Terms” shall mean Fees, Product, Specifications, quantity, scheduling and shipment information and other business terms specific to an Order. “Party(ies)” shall mean the Vexos Affiliate and Buyer Affiliate that is party to the Order. “Product(s)” shall mean the goods to be produced and sold to Buyer as set forth in the Order. “Production Materials’’ shall mean materials that are consumed in the production processes to manufacture Products including without limitation, solder, epoxy, cleaner solvent, labels, flux, and glue. Production Materials do not include any materials that have been specified by Buyer or any Buyer Controlled Materials. “Shipping Point” shall have the meaning set forth in Section 6.1. “Special Inventory” shall mean, individually and collectively, Minimum Order Quantity, Materials purchased in quantities greater than that required to fulfill a Orders in order to achieve price targets for such Materials (also know as economic order inventory), long lead time inventory, safety stock and other mutually agreed Inventory to support flexibility or demand requirements. “Specifications” shall mean, for each Product or revision thereof, the bill of materials, designs, schematics, assembly drawings, process documentation, testing protocol, current revision number, Approved Suppliers, each as agreed to by the Parties in writing. Notwithstanding any input provided by Vexos or Vexos’ agreement to the Specifications or any change thereto, Vexos shall have no duty to evaluate the Specifications, each of which shall be at Buyer’s sole risk. “Tooling” shall have the meaning set forth in Section 3.2.
Vexos Terms and Conditions of Sale: Trade Services
1. These terms and conditions apply to the sale of components or products not manufactured by Vexos. These terms and conditions do not apply to Vexos’ manufacturing services. If delivered in connection with a quotation (a “Quote”), these Terms and Conditions are incorporated therein by reference and constitute Vexos’ offer to sell the Products to Buyer and become a binding contract upon Buyer’s acceptance by issuance of a purchase order or conduct. If delivered in connection with Vexos’ acceptance of a Buyer purchase order (an “Acceptance”), these Terms and Conditions are incorporated into such Acceptance by reference and constitute Vexos’ acceptance of Buyer’s offer to purchase the Products. Vexos’ offer to manufacture and sell the Product or acceptance of Buyer’s offer to purchase, as applicable, is expressly conditioned upon Buyer’s acceptance of all of the terms and conditions of purchase referenced in, contained on or attached to the Quote or Acceptance, as applicable. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS WHICH MAY APPEAR IN ANY COMMUNICATION FROM BUYER, WHETHER SENT PRIOR TO, CONTEMPORANEOUSLY WITH OR AFTER THE QUOTE OR ACCEPTANCE IS DELIVERED, ARE HEREBY EXPRESSLY OBJECTED TO AND SHALL NOT BE EFFECTIVE OR BINDING UNLESS SPECIFICALLY AGREED TO IN WRITING BY VEXOS. NO SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY PRINTED FORM OF BUYER SHALL BECOME PART OF THE CONTRACT BETWEEN THE PARTIES DESPITE VEXOS’ ACCEPTANCE OF ANY PURCHASE ORDER OR DELIVERY OF PRODUCT UNLESS SUCH ACCEPTANCE SPECIFICALLY RECOGNIZES AND ASSENTS TO THEIR INCLUSION AND IS SIGNED BY AN AUTHORIZED AGENT OF VEXOS. Buyer’s purchase order is solely for the purpose of evidencing Buyer’s binding commitment to purchase and identifying the Ordering Terms and shall be deemed subject to and incorporated into the Quote or Acceptance, as applicable, with all standard terms and conditions of such Buyer’s form being disregarded. Any objection by Buyer to the Quote or Acceptance, as applicable, including the terms and conditions hereof, shall, at Vexos’ election, be deemed a rejection of the Order. Each Order is a binding, non-cancelable purchase commitment. Subject to this Section 1, “Order” means Buyer’s purchase order, which shall be deemed to incorporate the Quote or Acceptance, as applicable, these Terms and Conditions. “Ordering Terms” means prices, Product, specifications, quantity, scheduling and shipment information and other business terms specific to an Order.
2. Prices are subject to change without notice. No math or clerical errors are binding on Vexos. Prices do not include any sales, excise, or other tax by any federal, state, provincial or local authority. Buyer shall reimburse any taxes imposed upon sales or shipments unless Vexos receives an acceptable tax exemption certificate.
3. Delivery, Title and Risk of Loss. Vexos is not liable for delay or default in delivery resulting from any Force Majeure Event. Upon the occurrence of a Force Majeure Event: (a) the time for Vexos performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to Vexos resulting from such Force Majeure Event; and (c) Buyer shall not be entitled to any other remedy. Partial shipments are permitted at Vexos’ discretion. “Force Majeure” shall mean an act of God, acts or decrees of governmental or military bodies, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, Materials unavailability, or any other cause beyond the reasonable control of the affected Party. When goods are delivered to Buyer, however delivered, the F.O.B. point shall be Buyer’s designated delivery site where title and risk of loss shall pass to Buyer. All claims for shortage of goods or for loss or damage to goods as to which Seller has the risk of loss shall be waived unless Buyer, within 10 calendar days after receipt of the short or damaged shipment, gives Seller written notice fully describing the alleged shortage or damage. Partial shipments are permitted at Seller’s discretion.
4. Vexos is a reseller of the Products only, and as such does not provide any warranty for the Products. Notwithstanding this AS-IS limitation, Vexos shall pass through to Buyer any transferable manufacturer’s standard warranties. BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS FOR ANY DEFECTS IN OR FAILURES OF PRODUCT, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF BUYER AND PERSONS CLAIMING THROUGH BUYER FOR DEFECTIVE PRODUCT, WHETHER THE CLAIM SOUNDS IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER MAY PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF PRODUCT. VEXOS EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT SHALL VEXOS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, COVER, LOST PROFITS, ATTORNEYS’ FEES OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY VEXOS’ BREACH OF THIS AGREEMENT; (B) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER; OR (C) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO VEXOS FOR THE PRODUCT THAT IS SUBJECT OF SUCH CLAIM(S). ALL CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF ACCRUAL OF A CAUSE OF ACTION.
5. Buyer shall indemnify, defend, and hold Seller its officers, directors, employees and agents harmless from any and all costs (including attorneys’ and accountants’ fees and expenses), liabilities and damages resulting from or related to any third party (including Buyer’s employees) claim, complaint and/or judgment arising from Buyer’s use of any Product, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these Terms.
6. Changes and Returns. No credit for returns shall be given without Vexos’ written authorization. All returns are subject to a restocking charge.
7. Payment terms are net 30 days from delivery, and all orders are subject to Vexos’ continuing credit approval. If Buyer’s credit becomes unsatisfactory Vexos, in its sole discretion, may suspend or cancel performance, or require different payment terms, including cash on delivery or in advance of shipment. Vexos may also require an advance deposit of up to 100% of the price for any specially manufactured Product. All prices and all payments shall be in US Dollars. Vexos may apply Buyer’s payment against any open charges. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, continuing after Vexos obtains judgment against Buyer. Vexos may exercise setoff or recoupment to satisfy Buyer’s outstanding debt. Buyer shall have no right of setoff.
8. Buyer shall not export or re-export, directly or indirectly, any part of the Product except in accordance with applicable export laws and regulations of the U.S. Further, a Buyer that is a non-U.S. company or citizen shall similarly limit any export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen.
9. RoHS, REACH and Conflict Minerals. Notwithstanding anything in any Order to the contrary, Vexos does not warrant compliance with EU RoHS and REACH Directives or Conflict Minerals reporting requirements other than to the extent set forth in the written certifications delivered by Vexos to Buyer in connection with the Order.
10. Buyer shall pay Vexos all expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all attorneys’ fees, and collection costs incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings.
11. All disputes arising out of or related to the business relationship between Buyer and Vexos shall be governed exclusively by the laws of New York, excluding its conflicts of laws rules. Any legal action arising under or related to this Agreement shall be brought in New York County, New York, and any right to object to such venue or to assert the inconvenience of such forum is waived. The Parties waive all right to a jury trial.
12. If Buyer fails to comply with these Terms, Vexos may terminate or restrict any order immediately upon notice to Buyer. Buyer shall send Vexos written notice of any changes in the form of ownership of Buyer’s business within 5 days of such changes. Buyer and Vexos are the only intended beneficiaries of this document, and there are no third party beneficiaries.
13. These Terms shall survive termination, cancellation and completed performance of any sale as long as necessary to allow the aggrieved party to fully enforce its rights.
14. Entire Agreement; Severability. This Agreement constitutes the entire agreement between the Parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the Parties relating to such transactions. If any term of this Agreement is to any extent invalid or unenforceable, it shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent possible, such term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
15. Amendments; Waiver. This Agreement may be amended only by written consent of both Parties. Neither Party shall be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of such Party.