General Terms and Conditions for Sales and Delivery of Goods Manufactured by Aspocomp
1 General
(1) These general terms and conditions of sale (“General Sales Terms”) apply to all offers, quotations, order confirmations, deliveries and agreements (each an “Agreement”) concerning the Goods (as defined below in Clause 1(2)).
(2) In these General Sales Terms, the products detailed in the Agreement to be supplied by Aspocomp Group Oyj or any of its affiliated companies (“Aspocomp”) to the other party ( “Purchaser”) shall be referred to as “Goods”. Aspocomp and the Purchaser are also individually referred to as “Party” and together as “Parties”. No general terms and conditions of the Purchaser shall apply to sale of Goods unless specifically approved in writing by Aspocomp.
(3) Aspocomp reserves the right to amend these General Sales Terms from time to time. The version in force at the time of the relevant Agreement shall apply to that Agreement. Aspocomp will notify the Purchaser of any amendments by reasonable means, including by updating the General Sales Terms on Aspocomp’s website.
2 Technical Documents and Technical Information
(1) All intellectual property rights, including but not limited to copyrights, trademarks, patents, design rights, and any other rights arising from or relating to the Goods and any associated documents, drawings, specifications, or instructions (“Intellectual Property Rights”), shall remain exclusively vested in Aspocomp at all times.
(2) Title and intellectual property rights in and to all technical documents submitted by Party to the other Party shall remain the sole property of the disclosing Party.
(3) Drawings, technical documents or other technical information received from the other Party shall not, without the consent of the disclosing Party, be used for any other purposes than that for which they were submitted. They may not be copied, reproduced, transmitted or otherwise communicated to a third party.
(4) Where the Purchaser provides designs, drawings, or specifications, the Purchaser warrants that such materials do not infringe any third-party intellectual property rights and shall indemnify Aspocomp from all related claims, costs, and damages.
3 Quotation, Purchase Order, Order Confirmation and Delivery
(1) Validity of the quotation is 30 days from the date of the quotation unless otherwise stated in quotation or agreed between the Parties in writing. The quotation shall be subject to material and/or capacity availability until an order confirmation.
(2) A purchase order (PO) placed by the Purchaser shall become binding on the Purchaser when placed by the Purchaser to Aspocomp. Such an order shall become binding on Aspocomp only after Aspocomp’s written order confirmation (OC). Aspocomp shall issue OC within five working days after receiving PO. If OC has not been issued in the beforementioned time, the PO shall be considered declined.
(3) In case the Purchaser wishes to change, reschedule or cancel a confirmed PO, such changes will not be valid unless confirmed by Aspocomp in writing. In such case, the Purchaser will be liable for all reasonable costs incurred by Aspocomp due to such change, reschedule or cancellation. When cancelling a PO or part of it, the Purchaser will be liable for all accumulated costs of manufacturing the Goods until the date of the notice of cancellation.
(4) Delivery time calculation starts from the date when Aspocomp has received both PO and complete manufacturing documentation of the Goods. If technical information is missing, if any, the Purchaser will be informed as soon as possible.
(5) Standard delivery time is 14-16 weeks, depending on the Goods. Deliveries with shorter delivery time are express deliveries and always expressly agreed in writing by the Parties.
(6) Aspocomp will manufacture the Goods to the highest standard of workmanship, and using the specified materials and according to the Purchaser’s part number documentation. If not otherwise agreed in writing or stated in the documents, quality specifications IPC-A-600 (latest version) and IPC-6012/IPC-6016, Class 2 will apply. Copper thicknesses on the Purchaser’s specifications are considered nominal values unless clearly otherwise specified in writing and in such case the lower tolerance of the minimum plated layer copper thickness shall be -20% of the specified nominal thickness but not less than 7µm.
(7) Unless otherwise agreed in writing by Aspocomp, the terms of delivery shall be FCA (INCOTERMS 2020) Aspocomp’s manufacturing plant. When agreed case by case between the Parties, Aspocomp can organize transportation according to the Purchaser’s instructions.
(8) Partial shipments shall be permitted unless otherwise agreed in writing.
4 Delay
(1) If Aspocomp finds that it will not be able to deliver the Goods at the agreed time or if delay on its part seems likely, Aspocomp shall without undue delay notify the Purchaser thereof in writing, stating, if reasonably possible, the time when the delivery can be expected.
(2) If a delay in delivery is caused by a circumstance that under Clause 10 constitutes ground for relief or by an act or omission on the part of the Purchaser, the time for delivery shall be extended by a reasonable period of time, considering the circumstances of the case.
(3) If Aspocomp fails to deliver the Goods on the agreed date of delivery due to reasons attributable to Aspocomp, and Aspocomp is not able to propose a new delivery date to the Purchaser, the Purchaser is entitled to liquidated damages starting from the first week immediately following the date on which delivery should have taken place. The liquidated damages shall be payable at a rate of 1.0 per cent of the agreed price of the delayed delivery for each complete week of delay. If the delay concerns only a part of the Goods, the liquidated damages shall be calculated on the respective part of the purchase price. The liquidated damages shall not exceed 10 per cent of that part of the price on which the liquidated damage is calculated. No liquidated damages shall be payable to the extent the delay is caused by the Purchaser or by circumstances beyond Aspocomp’s reasonable control, including without limitation the Event of Force Majeure. The liquidated damages become due at the Purchaser’s written demand but not before all of the Goods have been delivered or the purchase is terminated under Clause 4(4). The Purchaser loses its right to liquidated damages if it has not lodged a written claim for such damages within three (3) months after the time when the delivery should have taken place. This Clause defines Aspocomp’s sole and entire liability for any delay. However, in case of delay of express delivery of Goods, the liquidated damages will be agreed case by case in writing.
(4) If the Goods are delayed for at least four (4) weeks from the agreed date of delivery and the Goods are still not delivered, the Purchaser may in writing demand delivery within a final reasonable period, which shall not be less than two (2) weeks. If Aspocomp fails to deliver within such final period and this is not due to any circumstance for which the Purchaser is responsible or any cause falling under Clause 10, the Purchaser may, by written notice to Aspocomp, terminate the purchase in respect of the delayed and non-delivered Goods.
5 Prices and Payment
(1) Prices of the Goods and any other payments to be charged by Aspocomp shall be as confirmed by Aspocomp in the Agreement.
(2) Prices are exclusive of value added tax (VAT), customs duties, and any other taxes, duties, levies or charges connected with the delivery.
(3) Prices are quoted in EUR, unless otherwise agreed in writing between the Parties.
(4) Aspocomp may adjust prices up to reflect material increases in raw material costs, energy costs, freight rates, customs duties, or other external cost factors arising after the date of the Agreement, by providing a written notice to the Purchaser.
(5) Aspocomp is entitled to charge for any extraordinary costs attributable to the Purchaser, including costs arising from design changes or special handling requirements requested after the Agreement.
(6) Terms of payment are thirty (30) days net from the date of invoice, unless otherwise agreed in writing between the Parties. The Purchaser shall pay the invoice by wire transfer in accordance with the bank details stated in the invoice.
(7) In the case of delayed payment Aspocomp shall be entitled to interest as from the due date with an interest rate of sixteen per cent (16 %) per annum. If the Purchaser has any overdue payments outstanding to Aspocomp, Aspocomp shall be entitled to suspend or withhold further deliveries of the Goods until all such overdue amounts have been paid in full. Any such suspension or withholding of deliveries shall not constitute a delay attributable to Aspocomp and shall not give rise to any liquidated damages described in Clause 4(3) or other delay-related remedies.
(8) The Purchaser shall bear all reasonable collection costs, legal fees, and other expenses incurred by Aspocomp in connection with the recovery of overdue payments.
(9) The Purchaser shall not withhold, deduct, or set off any amounts from payments due to Aspocomp unless expressly approved in writing by Aspocomp.
6 Retention of Title and Transfer of Risk
(1) Risk of loss and damage transfers to the Purchaser in accordance with the agreed delivery term.
(2) The Goods shall remain the property of Aspocomp until paid for in full.
(3) If delivery is delayed for a reason attributable to the Purchaser, the risk of loss and damage transfers to the Purchaser on the originally agreed delivery date. The Purchaser shall bear all costs resulting from such delay, including storage costs incurred by Aspocomp.
7 Liability for Defects
(1) “Defect” means a material deviation from the specifications expressly agreed in the Agreement, solely to the extent attributable to Aspocomp. Aspocomp shall remedy a Defect in the Goods by either repairing or replacing the defective Goods. Aspocomp is not liable for defects arising out of material provided by the Purchaser or a design stipulated or specified by the Purchaser or by any other instructions given by the Purchaser.
(2) Aspocomp’s liability does not cover defects due to conditions of the Purchaser’s operation, storage or handling. In order to ensure good solderability, the Purchaser shall populate components on Goods within a floor life of eight (8) hours after opening the package. Aspocomp shall be liable only for damage caused by defective Goods that have been used in accordance with Aspocomp’s instructions. Aspocomp’s liability is limited to Defects, that appear within a period of six (6) months from the date of manufacture. In case of goods with a surface finish of Electroless Nickel Immersion Gold (ENIG), Hot Air Solder Leveling (HASL) or Lead Free HASL Aspocomp’s liability is extended to twelve (12) months from the date of manufacture.
(3) For parts, that have been repaired or replaced by Aspocomp under this Clause 7, Aspocomp shall have the same liability for Defects as set out in Clause 7(2). In no event may the obligations of Aspocomp under this Clause 7(3) be valid for more than two (2) years from the date of original manufacture.
(4) The Purchaser shall (at its own cost and with qualified personnel) inspect the Goods promptly upon delivery in accordance with the agreed delivery term. The Purchaser shall notify Aspocomp in writing of an alleged Defect without undue delay after the alleged Defect has appeared and in no case later than thirty (30) days from the day the alleged Defect became known or should have become known to the Purchaser. If the Purchaser fails to notify Aspocomp within the time limits above, the Goods are considered as accepted and the Purchaser loses its right to make any claim in respect of the alleged Defect.
(5) After notifying Aspocomp under Clause 7(4), the Purchaser will return a sample of the defective Goods or all of the defective Goods to Aspocomp for investigation if requested so by Aspocomp. Return of the Goods is possible only against a Return Merchandise Authorization (RMA) number issued by Aspocomp. Aspocomp shall investigate the alleged Defects and, if necessary, complete remedial actions either by repairing the non-conforming part of the Goods or by substituting non-satisfactory Goods with replacement Goods within a reasonable time. Aspocomp has fulfilled its obligations in respect of the Defect when it delivers duly repaired or replaced Goods to the Purchaser.
(6) If the Purchaser gives such notice as referred to in Clause 7(4), and no Defect is found for which Aspocomp is liable, Aspocomp shall be entitled to compensation from the Purchaser for the transportation costs incurred as a result of the notice.
(7) When Aspocomp is liable for the Defect, all transports in connection with repair or replacement shall be at Aspocomp’s risk and expense. The defective Goods must be packaged as they were received and available in the place they were originally delivered to. The Purchaser shall follow Aspocomp’s instructions regarding the packaging and transport.
(8) Defective Goods that have been replaced shall be placed at Aspocomp’s disposal and shall become Aspocomp’s property.
(9) Aspocomp reserves the right to investigate defective Goods on its own premises and will not accept any costs arising from any external investigations, unless otherwise agreed in writing between the Parties.
(10) Aspocomp shall compensate for assembled components on the defective Goods only if the components were assembled before the Purchaser became aware, or should have become aware of the Defect. Aspocomp’s liability for such assembled components shall be limited to the value of the defected Goods.
(11) If Aspocomp fails to fulfill its obligations under Clause 7(10) within a reasonable time, the Purchaser may by written notice require it to do so within the final period of time. If Aspocomp fails to fulfill its obligations within the specified time limit, the Purchaser may terminate the Agreement with immediate effect by written notice to Aspocomp in respect to the defective Goods in question. In case of such termination Aspocomp shall credit to the Purchaser the purchase price paid by the Purchaser for the defective Goods in question.
(12) If Aspocomp notifies the Purchaser that any Goods are subject to a recall, the Purchaser shall comply with Aspocomp’s reasonable instructions without undue delay, including ceasing use and installation of the affected Goods. Notwithstanding anything agreed regarding Aspocomp’s liability for defects, Aspocomp shall not be liable for any damage, loss or costs arising from the Purchaser’s failure to comply with such recall notice or instructions, including where the Purchaser installs or uses the affected Goods after receiving the recall notice.
(13) This Clause 7 defines Aspocomp’s sole and entire liability for any Defect.
8 Limitation of Liability
- Notwithstanding anything to the contrary, in no event shall Aspocomp be liable for any indirect or consequential loss (including, without limitation, loss of profits, loss of business, loss of production, loss of use, loss of contracts, depletion of goodwill or any other similar loss whatsoever), costs, damages, charges or expenses regardless of the legal basis of the claim. This limitation of Aspocomp’s liability shall not apply, however, to (i) mandatory product liability under applicable law, (ii) death or personal injury caused by Aspocomp, or (iii) damage caused by Aspocomp’s wilful misconduct or gross negligence.
- Aspocomp’s total cumulative liability is in all cases limited to the value of the Goods sold by Aspocomp.
- Aspocomp shall not be liable for any damage or loss to the extent caused by (i) any modification, alteration, or repair made by the Purchaser or any third party, (ii) incorrect installation, assembly, or handling, (iii) any use, operation, or other action contrary to Aspocomp’s instructions, (iv) or any use outside the intended purpose of the Goods.
9 Sanctions and Export Control
(1) The Goods may be subject to export control laws and regulations of the European Union, the United Kingdom, the United States, and Canada, and other applicable jurisdictions (“Export Control Laws“). The Purchaser is solely responsible for obtaining all necessary export and re-export licences, authorisations, and approvals, and for ensuring compliance with all applicable Export Control Laws in connection with the purchase, use, re-export, transfer, and end-use of the Goods.
(2) The Purchaser agrees not to re-export, directly or indirectly, any Goods supplied under any Agreement to Russia, Belarus, or any other jurisdiction subject to comprehensive trade sanctions. The Purchaser shall ensure that any third party to whom it resells the Goods agrees to equivalent restrictions.
(3) The Purchaser warrants that:
- it is not located in, incorporated under, or subject to the laws of any jurisdiction subject to comprehensive sanctions, and is not owned or controlled, directly or indirectly, by any sanctioned person or entity;
- it will not, directly or indirectly, export, re-export, transfer, sell, supply, or otherwise make available any Goods to any person, entity, or jurisdiction subject to sanctions imposed by the United Nations, the European Union, the United States, the United Kingdom, Canada or any other applicable authority; and
- the Goods will not be used for any purpose prohibited by applicable Export Control Laws, including but not limited to the development, production, or proliferation of weapons of mass destruction.
(4) Aspocomp shall not be liable for any failure to deliver the Goods or to process payments if such delivery or payment would violate applicable Export Control Laws or sanctions. In such circumstances, Aspocomp may, without liability, suspend or terminate the relevant Agreement with immediate effect.
(5) The Purchaser shall indemnify and hold harmless Aspocomp from all claims, losses, fines, penalties, costs, and expenses, including reasonable legal fees, arising from the Purchaser’s breach of this Clause 9. Any contractual limitation of liability shall not apply to claims under this Clause 9.
10 Force Majeure
(1) Notwithstanding anything else contained in these General Sales Terms, neither Party shall be liable for any delay or failure in performing any of its obligations, or part thereof, if that delay or failure is caused by circumstances beyond its reasonable control, including without limitation any delay or failure caused by a strike, lock-out, boycott or other form of industrial action, war, natural disaster, power failure, failure or delay in networks or telecommunications, shortage of transport, general shortage of materials, acts, restrictions, regulations, prohibitions or measures of any kind by any authority (“Event of Force Majeure”). Strike, lock-out, boycott and other industrial action will constitute an Event of Force Majeure, when the Party concerned is the target of such event. An Event of Force Majeure suffered by a subcontractor of a Party shall also discharge such Party from a liability, if the Goods cannot be sub-contracted from another source without unreasonable costs or significant loss of time.
(2) The affected Party shall notify the other Party in writing without undue delay of the occurrence and cessation of an Event of Force Majeure and, as soon as reasonably practicable, provide reasonable information on its expected impact.
(3) If the Event of Force Majeure continues for more than [ninety (90)] days, either Party may terminate the affected part of the Agreement by giving fourteen (14) days’ written notice. In such case, the Purchaser shall pay Aspocomp for Goods delivered prior to Event of Force Majeure. Aspocomp shall refund any advance payments received for Goods not yet delivered, less reasonable and documented costs irrevocably incurred by Aspocomp prior to the Event of Force Majeure.
11 Confidentiality
(1) All information in written, electronic, oral or other form, including but not limited to technical, business and financial information or other information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), and which by its nature should reasonably be understood to be confidential (“Confidential Information”), shall be treated as confidential and shall remain the property of the Disclosing Party.
(2) The Receiving Party shall protect the Confidential Information with at least the same degree of care as it uses to protect its own confidential information of a similar nature, but not less than a reasonable standard of care.
(3) Confidential Information received by the Receiving Party shall not, without the consent of the Disclosing Party, be used for any other purpose than in connection with the Agreement. The Receiving Party may not without the consent of the Disclosing Party use, copy, reproduce, transmit or otherwise divulge Confidential Information to a third party.
(4) Confidentiality shall not apply to any information that:
- is in the public domain at the time of disclosure or later becomes part of the public domain without breach by the Receiving Party;
- is lawfully received by the Receiving Party from a third party which is under no obligation of confidentiality with respect hereto;
- is lawfully in the Receiving Party’s possession prior to disclosure by the Receiving Party without any obligation of confidentiality;
- is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information;
- is expressly authorized to be disclosed by the Disclosing Party in writing; or
- is required by law to be disclosed by the Receiving Party or in accordance with the requirements of any regulatory or supervisory authority to which the Party is subject to.
(5) Access to the Confidential Information shall be restricted to: (i) the Parties personnel engaged in the Agreement; (ii) subcontractors of Aspocomp on a need to know basis; and (iii) professional legal or financial advisers of the Parties.
(6) All Confidential Information made available hereunder, including copies thereof, shall be returned or destroyed upon written request of the Disclosing Party. However, a Party may retain, subject to the terms of this Clause 11 (Confidentiality) one copy of the other Party’s Confidential Information required for its record keeping or internal quality assurance purposes, or required to be retained by law, regulation or decision of authorities, or by any stock exchange rules.
(7) The rights and obligations defined in this Clause 11 survive termination or expiry of the Agreement. Unless otherwise agreed in writing, the confidentiality obligations shall remain in force for [five (5)] years after completion or termination of the Agreement. With respect to trade secrets, the obligations shall continue for as long as the information remains a trade secret under the Finnish Trade Secrets Act (595/2018, as amended).
12 Termination of the Agreement
(1) Either Party shall have the right to terminate the Agreement, due to a material breach of the Agreement or these General Sales Terms, if the Party in breach has not remedied the breach within thirty (30) days from the other Party’s written notice.
(2) If either Party is in such a financial condition that there exist justifiable reasons to doubt the Party’s ability to perform its obligations under the Agreement or these General Sales Terms, the other Party shall have the right to terminate the Agreement with immediate effect.
13 Subcontractors
Aspocomp has the right to use subcontractors for manufacture and delivery of the Goods.
14 Assignment of the Agreement
The Purchaser shall not be entitled to assign the Agreement whole or in part without the prior written consent of Aspocomp. Aspocomp shall have a right to assign the Agreement whole or in part, to its affiliated companies or to a third party in connection with a business transfer.
15 Applicable Law and Disputes
(1) Agreements concluded under these General Sales Terms shall be construed in accordance with and governed by the laws of Finland without giving effect to its conflict of law rules and the application of the U.N. Convention on Contracts for the International Sale of Goods to the extent that such convention might otherwise be applicable.
(2) Any dispute, controversy or claim arising out of or in connection with any Agreement concluded under these General Sales Terms, which cannot be settled amicably between the Parties, shall finally be settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English. Any award from said arbitration shall be final and binding upon the Parties hereto.
(3) Notwithstanding the foregoing, either Party may seek interim or provisional measures from any court of competent jurisdiction, including measures for the protection of assets or evidence, without this being deemed incompatible with or a waiver of the arbitration agreement.