Terms & Conditions
FORMATION OF CONTRACT
Unless previously agreed in writing, an order placed with GE Toshiba Silicones (
PRICES AND DELIVERY
Prices for materials shall be determined by the confirmation Buyer receives from GETOS or, in the absence of such confirmation, by GETOS� list prices current at the time of the requested delivery date; provided however that in the event there is an increase in the published list price for the materials at any time or times prior to actual shipment of the materials ordered by Buyer, GETOS has the right to increase the price accordingly (including , for the avoidance of doubt, in any case where the price for the materials was determined by the confirmation Buyer receives from GETOS as aforesaid) and Buyer�s orders shall consequentially be re-priced to the published list price current at the time of actual shipment of the materials. Unless otherwise agreed in writing, (i) prices for materials shall be in US Dollars F.O.B. point of shipment (freight, insurance, customs clearance and permits to be arranged for and paid by Buyer), and (ii) payment terms shall be net thirty (30) days from the date of invoice. Costs of shipping by means or routes other than those selected by GETOS, shall be borne by Buyer. GETOS' prices do not include any governmental, state or local tax, transportation tax, sales, value-added or goods and services tax or other tax and GETOS shall separately indicate on its invoice(s) any tax required to be imposed. Buyer shall reimburse GETOS for GETOS� costs of collection should Buyer fail to pay GETOS in a timely manner, including interest at 1% per month (whether before or after judgment). Title to materials purchased hereunder, and all risk of loss or damage with respect thereto, shall pass to Buyer at the time material is transferred by GETOS to a commercial transportation carrier for shipment to Buyer. All delivery dates are approximate and may be changed at GETOS' sole discretion. If shipments are delayed by Buyer, payments shall become due on the date when GETOS is prepared to make shipment. If shipment hereunder is delayed or canceled by Buyer, payments shall be made based on the purchase price and the percentage of completion of the material. In the event of any such delay, title shall pass to Buyer and GETOS will hold material at Buyer's risk and expense. If at any time Buyer's financial condition does not, in GETOS' judgment, justify continuance of shipments of material under the terms of payment originally specified, GETOS may require full or partial payment in advance or shall be entitled to cancel any order then outstanding without being subject to any cancellation, charges or other liability. In no event shall GETOS be liable for consequential, special, incidental or exemplary damages based on any delay in delivery or failure to deliver material.
USE AND CONSUMPTION
Unless otherwise agreed by Buyer, all products sold by GETOS are provided solely for use or consumption by Buyer of such material from GETOS, and any resale or similar transfer of such material is prohibited and shall constitute a material breach of the governing Sales Agreement.
WARRANTY
GETOS warrants that all materials sold to Buyer will be free and clear of any claim of ownership by third parties, and will conform to GETOS' internal specifications therefor in effect at the time of manufacture of the material or such other specifications as may be mutually agreed upon in writing. GETOS does not warrant the workmanship with which the materials are used or applied. Buyer shall inspect all material supplied hereunder for damage, defect or shortage promptly upon receipt, and shall provide GETOS with prompt notice of any such damage, defect or shortage. The conditions of any test of the materials for conformance with specifications shall be mutually agreed upon and GETOS shall be notified of, and may be represented at, all tests that may be made. If any material is determined not to conform to GETOS' internal specifications, or such other specifications as may be mutually agreed upon in writing, within the earlier of (i) six (6) months from date of shipment, or (ii) the date of use of the material by Buyer, such material shall be replaced by GETOS without additional cost to Buyer, or, at GETOS' option, GETOS shall refund the purchase price therefor. This remedy is Buyer's exclusive remedy for breach of warranty. Defective materials shall not be returned by Buyer until authorized in advance by GETOS. Returned materials to the extent possible should be intact in the form shipped and retain the GETOS identity. THIS LIMITED WARRANTY IS GIVEN ONLY TO THE ORIGINAL BUYER, IT MAY NOT BE TRANSFERRED OR ASSIGNED AND DOES NOT EXTEND TO ANY SUBSEQUENT BUYER OR TRANSFEREE OF PRODUCTS. THE WARRANTY STATED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY, REMEDY AND DAMAGES
GETOS' liability to Buyer under any Sales Agreement or arising out of Buyer�s purchase, possession or use of the materials supplied hereunder or any technical advice relating thereto is limited to the warranty obligations set forth in the Warranty Article above, and in no event shall such liability, whether based in contract, warranty, negligence or other tort, strict liability or otherwise, exceed the purchase price for the material in question and, upon the expiration of the applicable warranty period specified herein, all such liability shall be deemed waived unconditionally and absolutely. The foregoing shall constitute the sole and exclusive remedy of Buyer and the sole and exclusive liability of GETOS. IN NO EVENT SHALL GETOS BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, SAVINGS OR REVENUE, LOSS OF USE OF THE MATERIAL OR ANY ASSOCIATED EQUIPMENT, COST OF ANY SUBSTITUTE FOR THE MATERIAL, DOWNTIME, CLAIMS OF THIRD PARTIES OR INJURY TO PROPERTY. THIS LIMITATION SHALL APPLY NOTWITHSTANDING A FINDING THAT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TECHNICAL ADVICE AND OTHER SERVICES
Buyer agrees that GETOS will not have control over the overall design, testing or labeling of any product produced using any material supplied hereunder. Buyer agrees that it is not relying upon any representation, statement or other assertion made by GETOS with respect to the suitability of the materials for any purpose, and that Buyer has made its own inquiry, testing and investigation into, and based thereon has formed an independent judgment concerning, the suitability of the materials for the use, conversion or processing intended by Buyer, and will not assert any claim against GETOS, or hold GETOS liable in any manner, with respect to any information, testing or design furnished (or failed to be furnished) by GETOS including, without limitation, technical advice or recommendations. Statements made by GETOS concerning possible or suggested articles, designs, or uses of materials are not to be construed as constituting a license under any patent covering such articles, designs, or uses, nor as a recommendation for use of such materials, articles or designs in the infringement of any patent or other intellectual property right.
PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHT
GETOS shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any material, in the form delivered by GETOS to Buyer, constitutes an infringement of any patent or other intellectual property right in the jurisdiction in which such sale occurred, if notified promptly in writing and given information and assistance (at GETOS' expense) and exclusive authority for the defense of any infringement claim and all negotiations relating to its settlement, and GETOS shall pay all damages and costs awarded therein against Buyer. In case any material in such suit or proceeding is held to constitute infringement and the use of the material is enjoined, GETOS shall at its own option and expense, either procure for Buyer the right to continue using the material, or replace same with a non-infringing material, or modify it so it becomes non-infringing, or accept return of the material from Buyer and refund the purchase price and the transportation cost thereof to Buyer. The foregoing states the entire liability of GETOS for patent infringement by the materials. GETOS shall not be responsible for, and Buyer shall hold GETOS harmless against, any expense or loss, including attorney's fees and expenses on a full indemnity basis, resulting from infringement of any intellectual property rights, including patents, trade secrets or trademarks, if such infringement arises from GETOS' compliance with Buyer's specifications or instructions.
VARIATIONS
Unless otherwise agreed in writing, any variation over or under in quantity shipped not exceeding ten (10) percent of the quantity ordered shall constitute compliance with the order and the unit price will apply to the quantity actually delivered.
ELECTRONIC COMMERCE
GETOS may offer products for sale using the Internet, e-mail or other computer-based electronic communications methods. All sales of products made using any such method will be governed by the terms of the governing Sales Agreement, and by any additional terms set out or referenced in GETOS�s Internet site or electronic communications. In the event of any conflict between the governing Sales Agreement and such additional terms, the governing Sales Agreement shall prevail. Buyer may not share any password, access code or similar credential which may be issued to it by GETOS, and GETOS reserves the right to suspend or revoke any such credential. Buyer is solely responsible for ensuring the security and integrity of its ordering process. Any information provided by GETOS via any Internet site or electronic communication (i) is subject to correction or change without notice, and (ii) is provided for the sole use of Buyer for purposes of facilitating individual transactions involving the purchase and sale of GETOS�s products. Buyer agrees that it shall not rely upon any such information for any purpose other than making individual purchases and shall not seek to assert such information against GETOS for any other purpose. Buyer specifically agrees that GETOS may issue electronic invoices for any purchases of products made using the Internet, e-mail or any other computer-based electronic communications method, and agrees to honor such invoice as if it had been delivered in writing.
TERMINATION FOR DEFAULT
Either party may terminate any Sales Agreement upon fourteen (14) days' prior written notice, in the event the other party breaches any material term or provision thereof , or files for bankruptcy or bankruptcy proceedings are filed against that other party, or business rehabilitation or reoganization proceedings are filed by or against that other party, or immediately where any administrator, planner, plan administrator, liquidator, receiver and/or manager or bankruptcy trustee is appointed or application for such appointment has been made in respect of either party or its assets (
FORCE MAJEURE
GETOS shall not be liable if its performance of its obligations (except the obligation to pay money), in whole or in part, under any Sales Agreement becomes impossible or commercially unreasonable resulting from an act of God, act of the other party, labor disruption, civil disturbance, strike, epidemic or other widespread health risk, fire, flood, war, terrorist threat or activity, release of dangerous or hazardous materials, government regulation, any delay in or inability to obtain utilities, transportation, labor, machinery, material, products or services through its usual and regular sources or any other condition or cause beyond its reasonable control, any such cause being hereafter referred to as "Force Majeure", and the quantities of material affected by Force Majeure shall be deleted from the quantities to be supplied under such Sales Agreement. In the event the Force Majeure condition is not alleviated within sixty (60) days after beginning to have an adverse effect on performance hereunder, then GETOS may, at its option, terminate the affected Sales Agreement upon written notice to Buyer, such termination to be without further liability to either party. If, for any reason, supplies of the materials deliverable hereunder or feedstock from which such materials are derived from any of GETOS' sources are curtailed or cut off or are inadequate to meet GETOS' own requirements and its obligations to its customers, GETOS' obligation hereunder shall be reduced to the extent necessary in GETOS' reasonable judgment to apportion fairly among GETOS' own requirements and its regular customers such materials as can be made available in the ordinary and usual course of GETOS' business from any such sources of supply.
PRODUCT WARNINGS AND INSTRUCTIONS
GETOS agrees to furnish Buyer with Material Safety Data Sheets ("MSDS's") for the materials supplied hereunder where applicable. The materials may be, or become, considered hazardous materials or hazardous substances under various laws and regulations when handled or processed. Buyer agrees to familiarize itself (without further reliance on GETOS) with any hazards of the materials, their processing and applications and the containers in which the materials are shipped. Buyer agrees to provide the MSDS's to all those required by law to receive the same and to inform and train its employees, and properly warn and instruct its customers, as to hazards identified in the MSDS's or discovered by Buyer in its investigations. Buyer further agrees to properly manage and dispose of all wastes and residues resulting from its use of the materials in accordance with applicable laws and regulations.
SECURITY AND TITLE
GETOS shall retain a purchase money security interest in the materials sold hereunder until all payments therefor (including deferred payments, whether evidenced by notes or otherwise) shall have been received in full by GETOS and, if requested in writing to do so, Buyer agrees to do all acts necessary to perfect and maintain such security interest in GETOS.
GOVERNMENT PROCUREMENT REQUIREMENTS
Buyer acknowledges that materials supplied by GETOS may not meet applicable government procurement requirements and that GETOS may not be able to supply information required by government procurement regulations. Except to the extent that GETOS has expressly agreed in writing with Buyer that its materials shall meet specified government procurement requirements or that GETOS will provide Buyer with specified information under government procurement regulations, GETOS shall have no liability whatsoever with respect to any requirements related to or arising from government procurement regulations.
INTERNATIONAL TRADE
Buyer will ensure that all GETOS materials, technology or software exported from the United States are exported in accordance with the U.S. Export Administration Regulations. Compliance with U.S. export regulations is the responsibility of the exporter. Diversion contrary to U.S. Law is prohibited. Any material designated "Export Controlled" is a regulated material and requires a validated export license for shipment outside the United States. Buyer certifies that it will not use or knowingly support the use by others of such products, technology or software in the design, development, production or use of nuclear, chemical or biological weapons, land mines or ballistic missiles. At all times, Seller will be entitled to decline to sell or ship to any party appearing on the Denied Persons List published by the Bureau of Industry and Security of the U.S. Department of Commerce, or identified in any similar governmental publication.
MEDICAL APPLICATION
Buyer understands that GETOS� materials are not intended for use in any medical application involving permanent implantation in the human body, or any such implantation lasting longer than 29 days, and agrees not to use any of GETOS� materials for any such application, or for any other application into which, to Buyer�s knowledge, GETOS has previously declined to sell material.
GENERAL
Cancellation of any order, or return of any conforming material purchased hereunder, will be subject to acceptance by GETOS and to a restocking charge in accordance with GETOS' policy as then in effect. These Conditions of Sale, together with the other documents, if any, comprising part of the same Sales Agreement, contain the entire agreement among the parties as to the subject matter thereof, and supersede all prior understandings, whether written or oral, relating thereto. No Sales Agreement may be amended, renewed, extended or modified in any manner, except by an instrument in writing signed by the parties. Neither course of performance, nor course of dealing, nor usage of trade shall be used to qualify, explain or supplement any of the terms of any Sales Agreement. Failure by either party, at any time or from time to time, to require the performance by the other of any term or provision of any Sales Agreement shall not constitute a waiver of such term or provision, or affect or impair such Sales Agreement in any way. Each provision of any Sales Agreement shall apply to the full extent permitted by law, and the invalidity in whole or in part of any provision shall not affect the remainder of such provision or any other provision, each of which shall be enforced to the full extent permitted by law. The rights and obligations of Buyer under any Sales Agreement may not be assigned or delegated, in whole or in part, without GETOS' prior written consent. These Conditions of Sale, and any other instrument or agreement making up part of a Sales Agreement, shall be governed by, and interpreted in accordance with, the laws of Singapore. A person who is not a party to the sales agreement between Buyer and GETOS has no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term hereof. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Conditions of Sale or any Sales Agreement.
