All sales made by Synventive Molding Solutions (Suzhou) Co. Ltd or its subsidiaries and affiliates in Asia, (Synventive Molding Solutions JBJ Pvt Ltd., Synventive Molding Solutions Pte Ltd, Synventive Molding Solutions Pte Ltd. Korea Branch 현지 언어, Synventive Molding Solutions K.K.) hereinafter referred to as “Synventive” are governed by Synventive’s Terms & Conditions of Sale, Delivery and Payment (“Terms”), which are set forth below.
EXCEPT AS STATED IN OUR TERMS, WE WILL NOT BE RESPONSIBLE FOR ANY LOSS RESULTING FROM ANY USE OF OUR PRODUCTS, MATERIALS, SERVICES, INFORMATION, RECOMMENDATIONS OR ADVICE.
CONDITIONS OF SALE
1. DEFINITIONS. As used below, "Seller" means Synventive; "Product" means any product or service sold by Seller; and "Buyer" means a party purchasing any Product from Seller.
2. APPLICABLE TERMS. All sales by Seller to Buyer, whether initiated by written purchase order, electronic means, telephone or any other method, will be subject to the following:
If a signed written agreement is then in effect between Seller and Buyer (a "Sales Agreement"), then any term in the Sales Agreement that conflicts with these Terms will prevail; otherwise these Terms will apply. If no Sales Agreement is in effect, then in either case these Terms shall apply, without regard to any contradictory terms of Buyer. These Terms, and the Product description and quantity specified in the Sales Agreement, as accepted by Seller, will express Buyer’s complete contract with Seller.
These Terms may be modified only by a written, signed agreement between Buyer and Seller. By purchasing Products from Seller, Buyer confirms its agreement with these Terms, and further agrees that, even if Buyer sends Seller another form of agreement or terms, or modifications to these Terms, and Seller does not expressly accept such agreement, terms or modifications in writing, then these Terms shall govern.
Quotations or prices from Seller shall not bind Seller and shall only serve as a request from Buyer to place an order.
For any order placed as a result of a quotation, Seller reserves the right to accept it within 2 weeks from the date of its receipt of the order. A binding Sales Agreement shall only arise when Seller accepts the corresponding order in writing.
All dimensions, sizes, weights and/or any other description or specification of the Products shall be stated by Seller as precisely as possible, but are not guaranteed. Rather, samples, drawings or models shall merely act as graphic portrayals of the Product in question. If the Products supplied by Seller deviate from its specifications or samples, drawings or models to such an extent that it cannot be reasonably expected that Buyer will accept these deviations, and Seller declines to correct such deviations, then Buyer shall have the right to withdraw from the Sales Agreement without further obligation to Seller and Seller shall promptly refund to Buyer any amounts previously paid by Buyer.
Seller reserves to itself all property rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to written documents marked as "confidential". Without express written approval from Seller, Buyer may not copy or reproduce these documents or hand them over or make them known to third parties. However, upon request by Buyer, Seller shall provide it with instructions and drawings - with the exception of workshop drawings - which shall make assembly, commissioning and use of the Product delivered possible for Buyer.
PRICING & PAYMENT TERMS
Product prices and payment terms are determined by the fully executed Sales Agreement.
Unless otherwise stated in the Sales Agreement, the prices stated by Seller shall apply "ex works", Suzhou, China (Incoterms 2014), excluding the cost of packaging, freight, insurance and sales or value added taxes which shall be charged separately.
Sales Agreements for which no fixed prices have been expressly agreed shall be charged at Seller’s list prices valid as of the day of shipment. If fixed prices have been expressly agreed, Seller reserves the right to increase prices with retroactive effect should its production costs increase as a result of unforeseeable incidents and/or increases in material prices and/or wages.
Risk of loss or damage to Products will pass to Buyer in accordance with the Incoterm specified by Seller in the Sales Agreement, and title will transfer at the same time as risk of loss. All delivery dates are estimates only.
If requested by Buyer, Seller shall obtain at Buyer’s sole cost and expense insurance for the Products while in transit to Buyer.
Seller may terminate any Sales Agreement or adjust Buyer’s payment and/or credit terms effective immediately upon written notice to Buyer in the event that (a) Buyer fails to pay any invoice when due; (b) Buyer generally fails to pay its debts as they become due; (c) Seller reasonably believes Buyer’s creditworthiness has deteriorated or Buyer is insolvent (based on the reasonable determination at Seller ’s sole discretion); or (d) a sale of a majority of the assets or a change of control of the ownership, of Buyer has occurred or is about to occur. If Buyer is in default under the Sales Agreement or these Terms, Seller may suspend shipments of Products; require cash in advance before shipment; and/or reduce payment terms until all invoices are current and Seller has received adequate assurance of future performance.
Buyer agrees to reimburse Seller for its costs of collection should Buyer fail to pay Seller in a timely manner, including reasonable attorneys’ fees, plus interest at the annual rate of LIBOR plus 5% (or the maximum rate allowed by applicable law, whichever is lower).
Where applicable, statutory value added tax, or other country specific taxes, shall not be included in the prices set forth in the Sales Agreement, but shall be shown separately on the invoice at the statutory amount on the day of invoicing. The same shall apply to customs charges, other consumption taxes or other dues or taxes imposed or charged in connection with sales of the Products and the transport of the same.
Unless stated to the contrary in the Sales Agreement, the net purchase price (without any deductions whatsoever) shall be due and payable not later than thirty (30) days from the date of the invoice in the currency stated on the invoice. At Seller’s option, all payments shall be made either directly to Seller or to a bank account designated by it in writing.
The date upon which delivery of the Products to Buyer is due shall not be determined until all technical questions have been resolved to Seller’s satisfaction. The delivery period shall be extended upon the occurrence of an event of force majeure. Seller shall notify Buyer in writing as soon as practical following the occurrence of an event of force majeure. The delivery period shall also be extended to the extent necessary should Buyer request changes to the Products after execution of the Sales Agreement. In addition, delivery dates may be affected if Buyer fails to pay invoices in full when due.
Except as agreed in the Global Warranty found below, Seller will not be responsible for any loss or damage to Buyer arising out of a delay in delivery or Buyer’s purchase, possession or use of any Product, whether based in contract, tort, or otherwise. SELLER WILL NOT BE LIABLE FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, EQUIPMENT DOWNTIME, COST OF ANY SUBSTITUTE FOR PRODUCTS, CLAIMS OF THIRD PARTIES OR INJURY TO PERSONS OR PROPERTY.
Seller warrants the Products, subject to the conditions set forth below, as follows:
a) Hot Runner System(s) (Manifolds, Nozzles, and hot halfs) shall be free of defects in materials and workmanship at the time of delivery and for a period of five (5) years from delivery (the "Warranty Period").
b) LEC and TTC temperature controllers (excluding TTC touch screen interfaces – 2 year warranty) shall be free of defects in materials and workmanship at the time of delivery for a period of (5) five years from delivery (the "Warranty Period"). Any defective LEC and TTC temperature controllers will be repaired (or replaced if necessary), free of charge, if returned prepaid to Seller.
c) Other controllers and components (all electronic and hydraulic controllers and components except as noted in b immediately above), heat control related components, all sensors, single nozzles and sprue bushings, spare parts and Dynamic Feed valve components) shall be free of defects in materials and workmanship at the time of delivery and for a period of one (1) year from delivery (the "Warranty Period").
This warranty does not apply to damage caused by ordinary wear and tear (examples: heaters, thermocouples, runner channel, gate area parts, valve pins, valve bushings, etc.) or parts misused or wrongly installed or runner channel wear caused by abrasive or corrosive materials. If an item is replaced or repaired by the Seller during the applicable Warranty Period, the Warranty Period shall not be extended but will remain in effect from the original system purchase date. Seller’s liability under this Limited Warranty shall in no case be greater than the original purchase price of the Products. Seller will honor the Product warranty, subject to Buyer’s fulfillment of the following conditions: (1) Seller must receive prompt notice of defect; (2) the defect must have occurred during the applicable Warranty Period; and (3) Buyer must establish that the Product(s) has been properly installed, maintained and operated within the limits of related and normal use as defined by Seller. In addition, the Product(s) must be in the possession of the original owner and used for the original purpose. No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty concerning the Product(s) other than as stated herein. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILTY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM PATENT INFRINGEMENT.
LIABILITY FOR DEFECTS
In the event that any Product provided by Seller is defective, Seller in its sole discretion may elect either to remedy the defect; deliver a new defect-free product; or refund to Buyer the purchase price set forth in the Sales Agreement. Should Seller elect to remedy the defect, it shall be obliged to bear all the expenditure necessary for the purpose of remedying of the defect, in particular, transport, travel, work and material costs, insurance and any applicable sales or value added taxes, except to the extent that such expenses have increased as a result of the Products being moved to a place other than the place of original delivery.
If performance of any new or remedied Product fails, Buyer shall, at its choice, be entitled to terminate the Sales Agreement and receive a refund of the purchase price.
CHANGES TO THESE TERMS
Seller reserves the right, at its sole discretion, to change, modify, add or remove any provision of these Terms, in whole or in part, at any time, by posting revised Terms on its web site.
In the event Seller makes material changes to these Terms, notice of such changes will be posted on the homepage of its web site found at www.synventive.com.
ADVICE AND OTHER SERVICES
Buyer agrees that Seller will not have any control over the design, testing or labeling of any product produced using the Products, and that Buyer is not relying on any representation or statement made by, or on behalf of, Seller with respect to the suitability of any Product for any purpose, or on any advice, recommendation or information obtained from Seller's product literature or web sites, including any design aid or other service made available by Seller. Buyer has tested and investigated the Products enough to form an independent judgment concerning their suitability for the use, conversion or processing intended by Buyer and will not make any claim against Seller based on its advice, statements, information, services or recommendations.
Any suggestions Seller makes about possible articles, designs or uses of Products do not give Buyer a license under any patent or other intellectual property right covering such articles, designs or uses, nor are they a recommendation that Buyer use any Product in a manner that may infringe any patent or other intellectual property right. If there is a claim that any Product, in the form in which Seller sold it to Buyer, infringes another company’s or person’s patent or other intellectual property right in the jurisdiction in which such sale took place, then (i) upon receipt of written notice from Buyer, together with evidence of the alleged claim of infringement, Seller will defend Buyer against such claim, and indemnify Buyer against all reasonable costs of such defense incurred by Buyer, and (ii) if any Product subject to such a claim is determined to infringe another company’s or person’s patent or other intellectual property right, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the Product or accept return of the Product from Buyer and refund the purchase price thereof. The foregoing states the entire obligation of Seller for intellectual property infringement. Seller shall not be responsible for, and Buyer shall hold Seller harmless against, any damages and costs, including attorneys’ fees, incurred by Seller as a result of any claim of infringement of another company’s or person’s patent or other intellectual property right that arises from Seller's compliance with any specification or instruction provided by Buyer. In the event that Buyer shall become aware of any claim of the type described above, it will promptly notify Seller in writing and give it all necessary information, assistance and exclusive authority for the defense of any such claim and its settlement.
EXPORT CONTROL AND ECONOMIC SANCTIONS COMPLIANCE
Buyer will ensure that any Products, technology or software received from Seller are exported by Buyer only in compliance with applicable laws, including U.S. export control and economic sanctions laws. 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.
Cancellation of any order, or return of any conforming Product purchased hereunder, will be subject to acceptance by Seller and to a restocking charge determined by Seller at its sole discretion.
The invalidity, in whole or in part, of any term herein shall not affect any other term, each of which shall be enforced to the full extent permitted by law.
Seller is entitled to identify publicly Buyer as a customer of Seller and utilize photographs of Buyer's applications utilizing Seller's products in Seller's marketing materials.
1) In the event that a dispute arises under the Sales Agreement or these Terms, the party asserting that a dispute has arisen will notify the other party in writing within fifteen (15) days of the date on which the party claims the dispute arose. Failure to provide such notice on a timely basis will act as a waiver of the claim upon which the dispute is based. Upon receipt of written notice of the dispute, which will specify the basis of the dispute in simple terms, the party receiving the notice will contact the other party and executives of both parties will as soon as practical meet and confer in good faith in an effort to resolve such dispute promptly and amicably. If the parties are unable to resolve the dispute with thirty (30) days of their meeting, then the dispute will promptly be referred to a professional mediator, as provided in paragraph 2 below.
2) The parties will each promptly propose two or three professional mediators familiar with commercial dispute resolution. If the parties are unable to agree on the selection of a mediator within ten (10) days following exchange of proposed mediators, then the mediator will be appointed by the Hong Kong Chamber of Commerce or equivalent organization. The mediator will conduct a one day, maximum eight (8) hour, mediation with executives of both parties in good faith effort to resolve the dispute. The fees of the mediator will be shared equally by the parties. If the mediator shall not successfully resolve the dispute, then the dispute will be referred to binding arbitration, as provided in Paragraph 3 below.
3) A single professional arbitrator familiar with commercial disputes will be appointed by the Hong Kong Chamber of Commerce promptly upon request of either party. The arbitrator will convene the arbitration process as soon as practical thereafter in Hong Kong. The arbitration shall not last more than two (2) days, maximum eight (8) hours per day. The arbitrator may at his or her option hear testimony from witnesses chosen by the parties during the arbitration and/or request submission of written position statements from the parties prior to convening the arbitration. The arbitrator will follow the procedural rules of the American Arbitration Association and will apply the substantive laws of the State of New York, United Sates of America, without regard to its conflicts of law provisions, to resolve and decide the dispute. In the absence of a ruling from the arbitrator to the contrary, the fees of arbitration will be shared equally by the parties. The decision of the arbitrator shall be in writing, and shall be provided within fifteen (15) days following conclusion of the arbitration hearings; however, the arbitrator may but shall not be required to provide a written explanation underlying his or her decision. The decision of the arbitrator shall be binding upon the parties and may be enforced by the prevailing party in any jurisdiction in the event that the non-prevailing party fails to comply faithfully with the decision of the arbitrator. Any costs of enforcing the arbitrator’s decision, including attorneys’ fees, shall be paid by the party against whom enforcement proceedings have been commenced.
4) The parties hereby agree that the provisions in this Article for dispute resolution shall be exclusive and neither party may elect any other means to enforce a dispute arising under the Sales Agreement or these Terms.
Buyer certifies that it will not use, sell, 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, ballistic missiles, or for any other application into which, to Buyer’s knowledge, Synventive has previously stated it will not support or for which Synventive has otherwise declined to sell Products.
EVENTS BEYOND SELLER’S CONTROL
Seller will not be responsible if Seller's performance of any obligation hereunder (other than the payment of money) becomes impossible or commercially unreasonable due to any cause or event beyond Seller’s reasonable control, including, without limitation, acts of God, acts of any governmental authority, acts of Buyer, acts of terrorism, war, civil disturbance, labor disruption or strike, fire, explosion, release of dangerous or hazardous materials, inability to obtain necessary raw materials, utilities, transportation, machinery or services, and any similar or dissimilar cause or event (collectively, events of force majeure).