Terms & Conditions of Sale & Delivery

1. SCOPE

The terms and conditions of sale & delivery contained herein shall apply to all quotations, offers, sales of productions and services, and deliveries made by as well as purchase orders accepted by Luppens BVBA, a Belgian company with registration number 0474746803, using brand names including but not limited to ‘Luppens Marketing & Sales’, ‘CERcuits’ or ‘OCTO’, and its affiliates (“Seller”). These terms and conditions may in some instances conflict with some of the terms and conditions affixed to the purchase order or another procurement document (s) issued by the Buyer. In such a case, the terms and conditions contained herein shall govern and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of these terms and conditions irrespective of whether the Buyer accepts these conditions by a written acknowledgment, by implication, or by acceptance and payment of goods ordered hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these terms and conditions. Any changes in the terms and conditions of sale contained herein must specifically be agreed to in writing signed by an authorized employee of the Seller before becoming binding on either Party. All orders, offers, and contracts must be approved and accepted by an authorized employee of the Seller.

2. PAYMENT

Unless Buyer has established credit terms with Seller, all sales require advance payment prior to shipment of the goods. Failure of Buyer to make timely payment will be considered a breach by Buyer of the Parties’ agreements. In the event that Seller is required to bring legal action to collect on delinquent accounts, Buyer will be responsible for payment of attorney fees and any and all other costs incurred in the collection of payment. In the event Buyer is delinquent, Seller is entitled to seek any and all remedies, including but not limited to, charging Buyer 1.5% interest per month per thirty (30) days past due, withholding future shipments of goods, or canceling the purchase orders.
Payment will always happen in full. Buyer shall not detract any rebates, discounts, bonuses, refunds,.. or other reductions unless there is a written agreement with an authorized employee of the Seller.

3. TAXES.

All prices are exclusive of any present or future sales, revenue, value-added or excise tax or other tax applicable to the manufacture or sale of goods. Such taxes are added where applicable and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate or EU VAT number.

4. TITLE

Title of goods is transferred to Buyer at the destination point.

5. DELIVERY

Sales are F.O.B. shipping point unless otherwise provided. For recurring orders, Buyer shall provide Seller a minimum six (6) month delivery forecast for goods. Buyer shall also provide Seller with purchase orders at least one (1) month prior to the forecasted delivery date of goods. Failure to supply timely forecasts and purchase orders releases the Seller from any lead time obligations and late delivery penalties including those agreed in separate agreements or Buyer issued terms and conditions.

6. ACCEPTANCE

Buyer shall accept all conforming goods. Buyer shall accept or reject nonconforming goods within ten (10) days of receipt of each shipment. Failure to notify Seller in writing of nonconforming goods within ten (10) days shall be deemed an unqualified acceptance. Prior to the return of goods for nonconformity, Buyer shall obtain a written return authorization from Seller. The testing of goods shall be performed in compliance with Seller’s product specification.

7. WARRANTY

Except as specified below, goods sold to Buyer shall conform during the warranty period to Seller’s product specifications or other specifications accepted in writing by one of the Seller’s authorized employees. Unless informed otherwise in writing by the Seller or legal obligations, the warranty period for goods is twelve (12) months from the date of shipment from Seller and is applicable only to the original purchaser of the goods. If the Seller determines that the goods are defective due to Seller’s negligence in designing or manufacturing the goods, the Seller will promptly deliver the Buyer replacement goods. If replacement goods are not reasonably available, the Seller will refund the purchase price of goods or credit Buyer’s account for future deliveries. Any tools, designs, schematics, or software delivered to Buyer by the Seller are not warranted. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE. BUYER ACCEPTS THE RESPONSIBILITY OF VERIFYING THAT THE PRODUCTS ACQUIRED WILL MEET THE BUYER’S SPECIFIC REQUIREMENTS AND PERFORM AS WARRANTED. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING. The Seller does not warrant that products will operate uninterrupted or error-free, or that all deficiencies, errors, defects or nonconformities will be corrected. The Seller has no warranty obligation for third party products. Seller’s goods are intended to be used for ordinary electronic equipment. Seller’s goods are not authorized for use as critical components in life support devices or devices that jeopardize life or health and must not be used in these devices without the express written approval of an authorized employee of the Seller.

8. LIMITATIONS OF LIABILITY

The Seller is not liable for any indirect, incidental or consequential damages, or for loss of profits, revenue or data, whether in an action in contract, tort, product liability, statute or otherwise, even if advised of the possibility of those damages. The Seller will not be liable for direct damages caused by late delivery, product defect, or any other cause except as expressly provided in a contract signed by an authorized employee of the Seller. The Seller has set prices for its products based on the allocation of risks set out herein.

9. REVERSE ENGINEERING

Buyer agrees not to reverse engineer, disassemble, or take any other step to derive the structure or design of Seller’s goods. Any attempt to derive the structure or design of the goods shall be deemed a breach and shall void the product warranty given hereunder. Buyer shall be liable for all direct and indirect damages (including consequential, incidental, and punitive damages) resulting from any reverse engineering of goods performed intentionally by Buyer or an agent of the Buyer or performed as a result of Buyer’s negligence.
9.1 The sale of the goods does not convey any license, by implication, estoppel or otherwise, under any proprietary or patent rights covering any combination in which goods supplied by the Seller are combined with any other product, whether or not supplied by the Seller, or any method of process in which the goods may be used.

10. Tooling

Soft tooling, as indicated on our quotations, and have been paid by the Buyer, shall remain as property of the Seller as the Seller maintains, re-tool, or duplicate the tools to support ramp up production requirement of the Buyer.
Hard tooling, as indicated on our quotation, shall be Buyer’s property and may be withdrawn by the Buyer, but with the condition that the Seller is given at least 6 months of advanced notice to ensure there are no additional products being fabricated or material being purchased for production, and with the mutual agreement of both the Seller and Buyer on the inventory of product and materials liability undertaking or with an agreed compensation being reached.
Other NRE (non-recurrent expenses) such as engineering hours, silkscreen stencils, fixtures, adhesive set-ups, insulators/label cutters, temporary / prototype / NPI tooling, jigs, which have been paid by the Buyer shall remain as property of the Seller as the Seller maintains them throughout the life of the product while the product is still being supplied by the Seller.

11. RESALE

Buyer agrees not to resell goods except as a component in Buyer’s product. Buyer agrees, upon Seller’s request, to promptly deliver a written description of Buyer’s product to Seller.

12 CANCELLATION

Seller in principle does not accept cancellation of orders. Upon limited exception, cancellation or rescheduling of shipment may be accepted if an authorized agent of the Seller provides authorization and Buyer provides written notice of at least thirty (30) days prior to shipment. Any cancellation or rescheduling of shipment dates may be subject to a 15% restocking fee. Buyer shall accept delivery of all such goods completed at the time of cancellation. Goods being produced at the time of cancellation shall be paid for by the Buyer at a price based on the percentage of completion of such inventory applied to the price of the finished product.
12.1 CANCELLATION FOR DEFAULT. Any order may be canceled in whole or in part on written notice by Buyer because of Seller’s failure to deliver goods in accordance with the terms of the Parties’ agreements, which failure is not due to any of the reasons set forth in Section 15 below. Cancellation by Buyer for default, which may entitle Buyer to procurement costs shall be effective only upon the Seller’s failure to correct such default within a reasonable period of time, but no less than forty-five (45) working days after receipt by the Seller, of written notice specifying such default. Upon cancellation, Buyer, as its sole remedy, may recover from the Seller as damages the difference between the cost of procurement (cover) and the contract price, less expenses saved in consequence
of the Seller’s breach, but in no event to exceed ten percent (10%) of the product price multiplied by that number of goods unconditionally released by Buyer, but remaining unshipped at the time of cancellation, provided, however, such claim by Buyer must be asserted within the thirty (30) day period following the effective date of cancellation. The Seller shall not be liable for incidental or consequential damages, including but not limited to the cost of labor, requalification, delay, loss of profits, or goodwill.
12.2 CANCELLATION FOR INSOLVENCY. The Seller shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer: (i) becomes insolvent; (ii) is adjudicated bankrupt; (iii) petitions for or consent to any relief under any bankruptcy reorganization statutes; or (iv) becomes unable to meet its financial obligations in the normal course of business.

13. CONFIDENTIALITY

The Buyer agrees to treat any information gained from Seller in the course of the parties’ relationship as confidential, and shall not divulge, directly or indirectly, to any other person, firm, corporation, association, or entity, for any purpose whatsoever. Buyer also agrees not to make use of any information gained from the Seller except for the purpose of evaluating and fulfilling its terms under the Parties’ agreements.

14. ASSIGNMENT.

The Parties may neither assign their respective rights or duties under any of their agreements.

15. FORCE MAJEURE

The Seller shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of God, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, or any other causes beyond the reasonable control of the Seller. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.

16. Jurisdiction

The parties hereto consent to the exclusive jurisdiction of the Rechtbank van koophandel in Turnhout, Belgium to adjudicate any dispute arising out of this Agreement.