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General terms and conditions of sale
1. APPLICABILITY
These general terms and conditions of sale (“GTCs”) shall apply to any Contract except as otherwise expressly agreed in such Contract. In case of conflicting provisions, the wording of the Contract shall prevail. Any general or purchase conditions of Buyer are hereby explicitly and entirely rejected and shall not apply to any Contract even if referred to or printed on any Order or any other document or communication of Buyer.
2. DEFINITIONS
The following terms shall have the following meaning:
2.1 "Affiliate" of a Party means an entity which is (i) directly or indirectly controlling such Party; (ii) under the same direct or indirect control as such Party; or (iii) directly or indirectly controlled by such Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50%) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
2.2 “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in the Netherlands are open for business.
2.3 “Buyer” means the legal entity specified in the Contract as the purchasing Party.
2.4 “Confidential Information” means information of a confidential and/or proprietary nature, in whatever form (including on paper, electronically, orally or otherwise), including without limitation any information which relates to the other Party’s business(es), operations, plans, products, services, technologies, intellectual property, trade secrets, affiliates, shareholders, employees, business associates, customers and suppliers. For the avoidance of doubt, the provisions of the Contract shall be considered FASTMICRO’s Confidential Information.
2.5 “Contract” means any agreement for the sale and purchase of Products, resulting from (a) Buyer’s Order and FASTMICRO’s Order Confirmation or (b) a written contract executed by FASTMICRO and Buyer or (c) proposed by one Party and accepted by the other Party in writing including by exchange of correspondence or email or other forms of written communication.
2.6 “Force Majeure” means any event beyond a Party’s reasonable control and without the fault or negligence of such Party that causes such Party’s failure to perform its obligations hereunder. Such causes may include, but are not limited to, storms, floods, pandemics, epidemics, embargoes or other import or export restrictions, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared), armed hostilities or other national or international calamity or one or more acts of terrorism, but in every case the failure to perform must be beyond the control and without the fault or negligence of the affected Party. Payment difficulties shall not constitute a Force Majeure Event.
2.7 “Intellectual Property” or “IP” means any form of protection afforded anywhere in the world by law to inventions, works, designs, software, trade secrets, confidential information, know-how and other proprietary information and data, including without limitation patents (including re-issues, divisions, continuations and extensions thereof), copyrights, database right, registered and not-registered design rights, utility models, mask works, as well as applications for any such rights.
2.8 “Order” means the document issued by Buyer to order Products for purchase from FASTMICRO.
2.9 “Order Confirmation” the document or other written communication issued by FASTMICRO to Buyer accepting an Order.
2.10 “Party” means each of FASTMICRO and Buyer and “Parties” means FASTMICRO and Buyer.
2.11 “Products” means FASTMICRO’s products specified in the Contract.
2.12 “FASTMICRO” means the FastMicro entity specified in the Contract as the supplying Party.
3. ORDERS
3.1 Subject to Order Confirmation. All Orders issued by Buyer are subject to availability of Products and shall become binding upon FASTMICRO only upon the issuance of an Order Confirmation by FASTMICRO, or upon delivery of the Products, whichever is earlier. No changes of an Order shall become binding unless FASTMICRO issues a new Order Confirmation or upon delivery in accordance with such changes, whichever is earlier. Cancellation by Buyer of an Order already confirmed by FASTMICRO is always subject to FASTMICRO’s written acceptance and may be subject to compensation.
3.2 Subject to credit approval. All Orders are subject to general credit approval and a specific credit limit set by FASTMICRO for Buyer ats its reasonable discretion. In the event that (i) at any time Buyer places an Order to FASTMICRO which, as such or accumulated with the value of previous Orders for which payment has not yet been received in full by FASTMICRO, exceeds such credit limit, or (ii) any credit insurance obtained by FASTMICRO with respect to the Order no longer covers the risk of non-payment by Buyer, FASTMICRO shall promptly inform Buyer and shall be entitled at its discretion, at any time, thereby informing Buyer, to suspend such Order, including for the avoidance of doubt if an Order Confirmation has already been sent, as long as such credit limit is exceeded or until Buyer provides security reasonably acceptable to FASTMICRO in respect of any amount in excess of the credit limit or for which credit insurance no longer exists.
3.3 Product change. FASTMICRO shall have the right to change Products and/or to discontinue Products from time to time and shall not be liable for any loss or damage of whatever kind or nature suffered or incurred by Buyer as a result thereof. However, such change or discontinuation shall not affect any Order for which an Order Confirmation has been issued by FASTMICRO.
4. DELIVERY
4.1 Delivery term. FASTMICRO shall deliver the Products at the delivery point and in accordance with the delivery terms specified in the Contract. Delivery may be made in parts. If no delivery term is specified in the Contract, the applicable delivery term shall be Ex Works (Geldrop, the Netherlands) as such term is defined in the most recent version of the Incoterms.
4.2 Late delivery. FASTMICRO shall use its best efforts to deliver the Products to the Buyer on or before the delivery date confirmed by FASTMICRO in the Order Confirmation (the “Delivery Date”). FASTMICRO will promptly notify Buyer of any anticipated delay in meeting any Delivery Date and the root cause for the delay. FASTMICRO shall provide Buyer with a corrective action plan to mitigate the delay, which may include delivery of the Products by expedited means of delivery.
4.3 Rescheduling of Delivery Dates. Delivery Dates shall be rescheduled by FASTMICRO in its sole – reasonable - discretion, without any liability to Buyer, in case of (1) any delay due to Force Majeure; or (2) any delay by Buyer in the fulfilment of its obligations under the Contract.
4.4 Inspection. Buyer must carefully inspect the Products upon delivery and claims for shortages and/or visibly damaged Products can only be made if these shortages and/or visible damages are proven by Buyer to have existed at the time of delivery. Claims for shortages must be notified to FASTMICRO by telephone or e-mail within five (5) Business Days after delivery, failing which such claim shall not be dealt with by FASTMICRO and FASTMICRO shall have no liability in respect of such claim. Any liability of FASTMICRO for non-delivery of Products shall be limited to delivering the missing Products within a reasonable time or, if Buyer so chooses, by issuing a credit note at the pro rata rate against any invoice raised for such Products. Claims for damaged Products shall only be dealt with in accordance with Section 6 (including, for the avoidance of doubt, the Warranty Conditions referred to in Section 6).
4.5 Non-acceptance of delivery by Buyer. If, due to Buyer, delivery of the Products cannot be made at the Delivery Date, FASTMICRO may, without prejudice to its other rights and remedies under these GTCs, the Contract or applicable law, arrange for storage of the Products at the expense and risk of Buyer.
5. PRICES, INVOICES AND PAYMENT
5.1 Price. The price of the Products and the currency of payment shall be as set out in the Contract or, if not so specified, in accordance with the list prices published by FASTMICRO from time to time and in effect at the time of delivery. Prices are exclusive applicable taxes, duties, insurance and transportation costs.
5.2 Price increase. FASTMICRO shall be entitled, up to the time of delivery of the Products and with at least fifteen (15) Business Days written notice, to increase the prices payable by Buyer for the Products in the event of an increase of the costs that determine such prices, including without limitation the costs of raw materials, components, labor and energy, also in relation to Orders that have already been accepted by FASTMICRO by issuing an Order Confirmation.
5.3 Payment term. FASTMICRO shall invoice the Products prior to delivery. Unless the Parties have agreed otherwise, all payments to be made by Buyer must be made within 30 days from the date of FASTMICRO’s invoice.
5.4 Complaints. If Buyer has any objections to FASTMICRO’s invoice, Buyer must sent its written and substantiated objections to FASTMICRO within ten (10) Business Days after receipt of the invoice, failing which Buyer shall be deemed to have accepted by invoice.
5.5 Late payment consequences. If Buyer fails to pay within the agreed term, Buyer will be in default by operation of law without a notification of default being required. From the moment that Buyer is in default, Buyer will owe compensation for interest, equal to the statutory commercial interest (in Dutch: wettelijke handelsrente) as referred to in section 6:119a of the Dutch Civil Code for each month or part thereof by which the due date is exceeded. In addition, all judicial and extrajudicial costs incurred for collection will be borne by Buyer. The extrajudicial costs amount to fifteen percent (15%) of the unpaid amount due with a minimum of EUR 350.
5.6 Reservation of title. Title of the Products, and any rights under IP granted by FASTMICRO, shall first pass upon full payment of: (i) the price of the Products; (ii) if applicable, any interest charges and collection costs due under Section 5.5; and (iii) any other sums due to FASTMICRO from Buyer under any account. For all stock of the Products for which title has not yet passed, Buyer shall: (i) place notices of FASTMICRO’s ownership on the same and (ii) maintain the same in satisfactory condition. Further, Buyer shall provide, at Buyer’s costs, for adequate insurance against theft, loss or damage of Products for which title has not yet passed. If Buyer fails to make payment for the Products when such payment is due, FASTMICRO shall have the right to take possession of such unpaid Products and Buyer shall, at its own costs, render to FASTMICRO without charge all assistance and cooperation FASTMICRO reasonably requires to exercise such right. Buyer hereby grants to FASTMICRO, its agents and employees, an irrevocable license at any time to enter, after providing prior written notification, any premises where the Products are or may be stored in order to recover them where Buyer’s right to possession has terminated.
5.7 Set-off. Buyer may not set off any amounts owed to FASTMICRO or its Affiliates against any claim Buyer or its Affiliates might have against FASTMICRO or its Affiliates, nor may Buyer suspend its payment obligations on the basis of any claim it might have against FASTMICRO or its Affiliates.
5.8 Authorization to pledge. Buyer irrevocably authorizes FASTMICRO to pledge or assign FASTMICRO’s existing and future claims against Buyer to third parties as security and/or in the course of any factoring arrangement.
6. WARRANTY AND LIMITATIONS
6.1 Warranties. FASTMICRO warrants the Products in accordance with the warranty conditions set out in FASTMICRO’s warranty documentation (the “Warranty Conditions”). Except for the express warranties specified in the Warranty Conditions, FASTMICRO makes no other warranty whatsoever and disclaims all warranties and remedies, express, implied or statutory, with respect to the Products, including without limitation to the implied warranties of non-infringement of any third party’s intellectual property rights (but without limiting FASTMICRO’s obligations under Section 9), merchantability, correctness, accuracy, reliability, and fitness for a particular purpose.
6.2 Remedies. If a Product does not conform to the above warranty, FASTMICRO’s only obligation under the Contract and Buyer’s exclusive remedy shall be to repair or replace the defective Product at no cost to Buyer, or credit the Buyer in whole or part for the defective Product, all at the reasonable option of FASTMICRO. Repaired Products are warranted for the remainder of the original warranty period. For replaced Product, the warranty period shall start anew upon delivery of thereof. The remedies specified above are Buyer’s only remedies and FASTMICRO’s only obligations in the event of breach of warranty. Any other remedy is explicitly excluded, to the maximum extent permitted by law. FASTMICRO shall bear the costs related to the remedies set out above, except for the costs related to disassembly, removal, transportation and installation or reinstallation of the Products.
7. CONFIDENTIAL INFORMATION
Each Party shall at all times protect the confidentiality of the Confidential Information obtained from the other Party with the same degree of care as it would for its own Confidential Information, but in no event with less than a reasonable degree of care.
Neither Party shall use or disclose the other Party's Confidential Information except as permitted in this Section or in order to fulfill its obligations under the Contract. Confidential Information shall not include information that: (i) is generally known to third parties through no fault or omission of the receiving Party; (ii) was obtained by the receiving Party after its communication in a legally permissible manner from a third party who was entitled to disseminate the information without restriction; (iii) was already known to the receiving Party before it was received from the communicating Party and was not obtained from a third party in breach of its confidentiality obligations; or (iv) was independently developed by the receiving Party without the use of the communicating Party's Confidential Information. Each Party's confidentiality obligations under this Section shall survive expiration or termination of the Contract.
8. INTELLECTUAL PROPERTY
All IP rights with respect to the Products, documentation, and all other materials provided to Buyer by or on behalf of FASTMICRO under the Contract, such as analyses, designs, documentation, reports, offers, as well as preparatory materials in that regard, shall be held solely by FASTMICRO or its third party licensors. Provided that Buyer has made all payments due under the Contract, Buyer shall only acquire a non-exclusive license to use such IP rights as incorporated in the Products for the sole purpose of using the Products for the application set out in the Contract. Buyer is not allowed to act in a way that violates such IP rights. Thus, it is, inter alia, prohibited:
(i) To design, manufacture or sell any product or service which makes use of or incorporates any IP right held by FASTMICRO or its third party licensors;
(ii) To disassemble or reverse engineer the Products or determine any methods, or techniques of the Products;
(iii) To remove logos, trade names or trademarks of FASTMICRO from the Products or add logos, trade names or trademarks from Buyer to the Products.
9. SOFTWARE
9.1 Software. The Products includes software to operate the Products (“Software”). FASTMICRO and its licensors own all right, title, and interest (including, without limitation all IP) in and to the Software, as well as any end-user documentation for the Software made available to Buyer by FASTMICRO and any content provided by FATMICRO and used in connection with the Product.
9.2 License for Software. FASTMICRO grants to Buyer and Buyer accepts a nonexclusive license to use the Software as part of the Product (“License”). Buyer has only the limited rights to use the Software as expressly granted to Buyer under these GTC and no other rights are granted or conveyed, or will be deemed to be granted conveyed, whether by implication, estoppel, or otherwise.
9.3 No assignment. Buyer shall not assign, sublicense, transfer, pledge, lease, rent, or share Buyer’s rights under the License.
9.4 Restrictions. In accessing or using the Software, Buyer agrees not to (or permit anyone else to) do or attempt any of the following:
(i) use distribute, rent, loan, lease, sell, sublicense, or otherwise transfer or offer the Software for any commercial purpose;
(ii) modify, translate, adapt, arrange, or create derivative works of the Software;
(iii) decompile, disassemble or reverse engineer, or determine any source code, algorithms, methods, or techniques of the Software;
(iv) interfere with, damage, or disrupt the operation or any security-related features of the Software, gain unauthorized access, or restrict or inhibit use by others;
(v) use the Software, any feature thereof in a way that could or does violate any law or the rights (including without limitation, the copyright, trademark, patent, trade secret other intellectual property, proprietary or other rights) of any person, firm or entity or expose to FASTMICRO a legal liability.
9.5 Audit. FASTMICRO shall be entitled to verify and audit the Buyer’s compliance with this Section 9 if FASTMICRO has serious reason to suspect any breach of thereof by Buyer. FASTMICRO may request an independent third party auditor of a reputable firm to perform such audit. If any deviation of Section 9 is evidenced by the audit report, all costs of the audit shall be borne by Buyer. Buyer shall provide FASTMICRO and its auditors access to all premises, documents and records relevant for such audit.
10. DEFENSE AND INDEMNIFICATION FOR IP VIOLATIONS
10.1 Defense and Indemnification. If a Claim, as defined in this Section, is made against Buyer, FASTMICRO shall at its own expense defend Buyer against such Claim, or at its option, settle the Claim and - subject to the limitations of liability set forth in Section 11 - pay any and all damages finally awarded to the claimant by a court of law, or agreed with the claimant under a settlement agreement between the claimant and FASTMICRO. FASTMICRO's obligations shall be subject to the following conditions: (i) Buyer shall promptly notify FASTMICRO in writing of the Claim as soon as it becomes aware of it; (ii) Buyer shall give FASTMICRO sole control over the defense or (if applicable) settlement of the Claim; and (iii) Buyer shall provide all information and assistance reasonably requested by FASTMICRO in the defense or settlement of the Claim. For the purpose of this Section, "Claim" means any claim by a third party against Buyer based on the allegation that a Product, on the Delivery Date thereof, infringes a patent that has been published prior to the Delivery Date.
10.2 Remedies. If a Product becomes the subject of a Claim, or if FASTMICRO reasonably suspects that the use of a Product may become the subject of a Claim, FASTMICRO shall be entitled, at its own expense and option: (i) to acquire for Buyer the right to continue using the Product; or (ii) to replace the Product with or modify the Product into a non-infringing Product; or (iii) to refund to Buyer a pro rata portion of the price for the Product based on a straight-line monthly depreciation over a useful lifetime of seven (7) years. To the maximum extent permitted by law, the foregoing remedies will be the sole and exclusive remedies available to Buyer.
10.3 Exceptions. FASTMICRO shall have no defense or indemnification obligation for any Claim based on: (i) a Product modified by anyone other than FASTMICRO; (ii) a Product modified by FASTMICRO in accordance with specifications or instructions provided by Buyer; (iii) a use or combination of the Product with third-party Products; or (iv) Buyer's or third-party products.
12. APPLICABLE LAW AND DISPUTE RESOLUTION
These GTCs, the Contract and any dispute arising out of or in connection with these GTCs and the Contract shall be governed by Dutch law, without reference to its conflict of law principles, and the Parties submit to the exclusive jurisdiction of the competent court of Oost-Brabant, the Netherlands.
However, in the event Buyer has its statutory seat in a country in which a decision of a Dutch court is not directly enforceable, the dispute will be exclusively settled by means of arbitration in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The place of arbitration in that event shall be Eindhoven, the Netherlands. The language of arbitration shall be English. The parties agree that the Vienna Convention on the International Sale of Goods 1980 (CISG) shall not apply to the Agreement.
13. FORCE MAJEURE
13.1 Force Majeure. Neither Party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under these GTCs or the Contract so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
13.2 Obligations. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure event:
(i) notify the other Party of the nature and extent of such Force Majeure event; and
(ii) use all reasonable endeavors to remove any such causes and resume performance under the Contract as soon as feasible.
14. TERMINATION
14.1 Termination for insolvency. Without prejudice to any other rights (including the right to suspend performance of the Contract), either Party may terminate the Contract in writing and without prior judicial intervention with immediate effect if there is a moratorium, bankruptcy or liquidation of the other Party or if the other Party has issued a request for application of the Act on the Confirmation of Private Plans (the “WHOA”).
14.2 Termination for breach or Force Majeure. Without prejudice to any other rights (including the right to suspend performance of the Contract), either Party may terminate the Contract without prior judicial intervention with immediate effect if (i) the other Party has not remedied a material breach of the Contract (including repeated late payments) within thirty (30) Business Days after receipt by it of written notice of the breach by the non-defaulting Party requesting that it ceases; or (ii) there is a Force Majeure situation for at least sixty (60) Business Days.
14.3 Termination for Change of Control. Without prejudice to any other rights (including the right to suspend performance of the Contract), FASTMICRO may terminate the Contract without prior judicial intervention with immediate effect if a Change of Control occurs in relation to Buyer and such Change adversely affects the interests of FASTMICRO (e.g. because as a result of such Change, control is transferred to a competitor of FASTMICRO). For the purpose of this Section, Change of Control shall mean (a) the sale of all or substantially all of the assets of Buyer to a third party; or (b) a sale of stock, merger, consolidation or other reorganization of Buyer or its holding company(ies), resulting in more than 50% of the voting stock of Buyer, its holding company(ies) or the resulting or surviving entity being directly or indirectly owned or held by third parties other than those directly or indirectly owning or holding the voting stock in Buyer or its holding company(ies) on the effective date of the Contract.
15. MISCELLANEOUS
15.1 Assignment. FASTMICRO may assign any Contract to any of its Affiliates.
15.2 Subcontracting. FASTMICRO shall be entitled to subcontract all or any part of its obligations to be performed under the Contract, but shall remain responsible for such work.
15.3 Invalidity. If any one or more of the provisions contained in these GTCs or the Contract is held invalid, illegal or unenforceable in any respect, such provision or provisions shall be ineffective only to the extent of such invalidity, illegality or unenforceability, without invalidating the remainder of such provision or provisions or the remaining provisions of these GTCs or the Contract.
The Parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
15.4 Modification. No modification or deviation from these GTCs and/or the Contract shall be effective unless set out in a written amendment, signed by both Parties.