These Terms of Sales (“Terms”) shall apply as an ancillary document to the purchase of products and relevant services (collectively referred to as the “Products”) from the seller (“Seller”) and by the buyer (“Buyer”), each of which is identified in the accompanying quotation, credit application, proposal, order acknowledgement, or invoice (the “Sales Confirmation”). The core binding document and thus the terms of purchase shall be the Sales Confirmation documents.
Prices shall be binding after the official proposal is issued by the Seller in accordance with the Buyer’s demands. All prices are exclusive of any taxes, fees, duties, and levies, however, designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid.
Unless otherwise stated in the Sales Confirmation documents, Buyer will pay all invoiced amounts within thirty (30) days following the receipt. Unpaid amounts will accrue interest at a rate equal to the lesser of one and a half per cent (1.5%) per month and the maximum rate permitted by applicable law. In addition to all other remedies, Seller may suspend the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) days following Buyer’s receipt of notice thereof.
4. DELIVERY & SHIPPING
(a) Seller will deliver the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes any delay on shipment of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on the Seller’s part. (b) Unless otherwise agreed in writing by the parties, Seller will deliver the Products, EXW (Incoterms® 2010) at the location specified in the Sales Confirmation (the “Delivery Location”), using Seller’s standard methods for packaging and shipping same. Buyer will take delivery of the Products within three (3) days of Seller’s notice that the Products have been delivered to the Delivery Location. If Buyer fails to take delivery of the Products within this three (3) day period Buyer will pay Seller for the Products and all storage expenses incurred by Seller. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfilment of Buyer’s purchase order. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense and will provide the licenses and consents to the Seller before shipment. (c) The quantity of any instalment of the Products, as recorded by Seller on the dispatch from Seller’s place of business, is conclusive evidence of the quantity received by Buyer upon delivery, unless Buyer provides conclusive evidence to the contrary. Seller will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to Seller of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. Seller’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.
5. RISK OF LOSS
(a) Risk of loss or damage passes to Buyer passes upon delivery to the carrier. If Buyer fails to accept delivery of any of the Products on the date set forth in Seller’s notice that Seller has delivered the Products to the Delivery Location, or if Seller is unable to deliver the Products to the Delivery Location on the date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorisations, the risk of loss to the Products will pass to Buyer.
6. LIMITED WARRANTY & LIABILITY
(a) Seller shall provide the Products as it is defined in the Sales Confirmation and warrants to Buyer that the Products will be free from defects in material and workmanship for a period of twelve (12) months following the date of delivery to the Delivery Location (the “Warranty Period”). Notwithstanding the foregoing, the Warranty Period for consumable Products will in no event exceed recommended replacement intervals set forth in the published specifications and instructions provided by Seller or its suppliers or subcontractors Instructions (“Instructions”). If prior to the expiration of the Warranty Period, Buyer informs Seller in writing of any breach of this limited warranty, then Seller may repair or replace the Products that gave rise to the breach or, in Seller’s sole and exclusive discretion, refund the amounts that Buyer paid for the Products. (b) The foregoing limited warranties do not apply to (i) any defect in Products not manufactured by Seller; and (ii) any Products manufactured according to Buyer’s specifications. (c) Buyer will bear the costs of access, de-installation, re-installation and transportation of the Products to Seller and back to Buyer. Any repair or replacement pursuant to this limited warranty will not extend the Warranty Period. Seller does not warrant the Products, or any repaired or replacement parts, against normal wear and tear or corrosion. This limited warranty and remedy are expressly conditioned upon: (i) Buyer’s payment of the purchase price in full, (ii) Buyer giving written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect, (iii) the storage, installation, operation, use, and maintenance of the Products in compliance with the Instructions, (iv) the existence of proper records of Buyer’s operation and maintenance of the Products during the Warranty Period, (v) Buyer providing Seller with a reasonable opportunity to examine the Products and the aforementioned records, and (vi) the absence of any unauthorised modification or repair of the Products, including without limitation the removal or alteration of any serial numbers or warranty date decals. (d) Before any test may be used to evaluate the Products, Buyer will: (i) provide Seller with reasonably written notice of the test, (ii) allow Seller to be present during the test, and (iii) receive Seller’s consent to the conditions of the test, which consent will not be unreasonably withheld. If a test is performed on the Products, and Seller has not consented to the conditions of the test, then this limited warranty will be void. (e) THE REMEDIES SET FORTH IN THIS SECTION 8 ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE OF SELLER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OF ANY KIND, AND SELLER DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. NO LICENSE
(a) Except as provided in Section (b), the sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by Seller, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to Seller, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without Seller’s prior written consent, use any trademark or trade name of Seller in connection with any the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of Seller. (b) If the software is provided by Seller under the Agreement, Buyer agrees that the software may only be used in accordance with the terms and conditions of the software license agreement that accompanies the software. Buyer agrees not to directly or indirectly decompile, disassemble, reverse engineer or otherwise derive the source code for the software.
All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with Buyer is confidential and may not be disclosed or copied unless authorised in advance by Seller in writing. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure, or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
9. GOVERNING LAW & JURISDICTION
These Terms are construed in accordance with the laws of Thailand with the exclusion of the UN Convention on Contracts for the International Sale of Goods and the courts of Bangkok will have exclusive jurisdiction on any conflict or claim arising out of or relating to these Terms and to the Sales Confirmation.