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HYTEST NORTH AMERICA INC. GENERAL TERMS OF DELIVERY (06/2024)
1. Scope of Application
1.1 These General Terms and Conditions (the “General Terms and Conditions”) shall apply to all sales of products by Hytest North America Inc. (“Hytest”) to its client (the “Buyer”). Deviations from these General Terms and Conditions shall not apply unless otherwise agreed by the parties in writing.
1.2 If a separate supply agreement has not been concluded between the parties, then subject to Section 1.1, these General Terms and Conditions, together with either (i) Hytest’s offer, or (ii) the Buyer’s unconditional order (with respect to products and quantities) and Hytest’s order confirmation shall form an agreement concerning delivery of products (the “Agreement”). By a reference these General Terms and Conditions form a part of a separate contract between Hytest and the Buyer. Further, Hytest’s offer, or Hytest’s order confirmation, is expressly limited to the terms set forth herein. Hytest objects to any additional or different terms, except to the extent that Hytest expressly agrees otherwise in writing as part of, or after, Hytest’s offer or its order confirmation, as applicable.
1.3 These General Terms and Conditions shall enter into force on June 17, 2024 and shall be valid until further notice.
2. Ordering, Terms of Delivery and Inspection
2.1 The Buyer shall submit orders by electronic online service, electronic mail, or any other manner acceptable to Hytest to the agreed point of contact. Order means a document or other similar request (in whatever mutually agreed technical form), issued by the Buyer where the Buyer requests Hytest to provide its products.
2.2 The products, as well as the prices, specifications, quantities, delivery times and other relevant issues related to the products shall be defined in each Agreement. The product shall, at the time of shipment, fulfil the requirements and specifications set forth in the applicable Hytest Data Sheet or other Hytest document accompanying the product (“Documentation”), and the requirements of this Agreement, and shall comply with the applicable laws and regulations of the European Union and the United States at the time of delivery. Except as stated in the preceding sentence, Hytest makes no warranties, express or implied, and DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT with respect to the products. Use of any and all products is subject to the qualifications, conditions and other information in the applicable documentation accompanying the products.
2.3 Unless otherwise specifically agreed in writing, the term of delivery for the products shall be [FCA] (Incoterms 2020), Mahwah, New Jersey. All shipments shall be via a courier arranged by Hytest, unless Buyer requests, and Hytest agrees to, a different method of shipment. All shipping charges are the responsibility of Buyer. Where applicable, Buyer will authorize Hytest to use Buyer’s courier account for shipping charges.
2.4 Time of delivery of the product set forth in the Agreement is an estimate. Hytest’s sole responsibility is to use reasonable commercial efforts to meet specified delivery dates. Hytest will use reasonable commercial efforts to promptly inform the Buyer in writing of any expected delay of the delivery, and any effects thereof, as well as the estimated new delivery time, where available. Hytest shall not be liable for any loss or damage incurred by the Buyer due to Hytest’s failure to meet the delivery times. Without limiting the foregoing, the delivery shall not be considered delayed if the product cannot be timely shipped through no fault of Hytest. The Buyer shall not have the right to reschedule, cancel or otherwise amend submitted orders.
2.5 The Buyer shall perform an inspection and quality control of each shipment without delay, and in any event, within fourteen (14) days from the date of the delivery. The Buyer shall, during such period, inform Hytest in writing of all damage, non-compliances with the requirements of Section 2.2, defects, errors and deficiencies (“Defects”) detected or which should have been detected in the delivery and shall identify such Defects in sufficient detail.
2.6 Defects which do not substantially interfere with the use of the product shall not prevent the acceptance of the delivery nor subject Hytest to any obligation.
2.7 The delivery shall be deemed to be accepted, when (a) the time reserved for the inspection and quality control has elapsed; (b) the Buyer has accepted the delivery in writing; (c) Hytest has demonstrated that it has corrected all Defects reported by the Buyer in writing which prevented earlier acceptance; or (d) the Buyer takes the delivery into production use, whichever occurs first. The acceptance criteria set forth above in this Section 2.7 shall not be applied to the extent a Defect in a partial delivery could not have reasonably been detected prior to the acceptance testing of a later delivered part of the delivery. Once the later delivered part of the delivery has been delivered, the acceptance criteria and the time period reserved for the inspection and quality control set forth above in this Section 2.7 shall be applied to such delivery in whole.
Where any valid claim based on any Defect in the quality or condition of the products or their failure to comply with the requirements of Section 2.2 is duly and timely notified to Hytest in accordance with these General Terms and Conditions, Hytest shall replace the defective products (or the part in question) free of charge or in Hytest’s sole discretion, refund to the Buyer the price of the defective products. Hytest shall have no further liability to the Buyer with respect to any non-compliance or Defect in the products.
2.8 This Section 2 states the entire liability and obligations of Hytest and the sole and exclusive remedy of the Buyer with respect to any alleged or actual non-compliance or Defect in the delivery.
3. Title, Risk of Loss and Intellectual Property Rights
3.1 The title to the acquired product shall pass to the Buyer upon payment of the purchase price in full to Hytest’s designated bank account.
3.2 All risk of loss or damage to the product shall pass to the Buyer in accordance with the terms of delivery specified in Section 2.3.
3.3 Hytest or its licensors, where applicable, shall own all intellectual property rights used on or relating to the products and any other documents or information prepared or that may be disclosed by Hytest in connection with the products delivered hereunder, including any copyright, patent, trademark, design right, trade secret and any other intellectual property rights whether or not capable of registration. Should the Buyer in connection with the use of the products delivered hereunder make, create, produce, discover or conceive changes or modifications to the products, all intellectual property rights to such changes or modifications shall become property of and be vested with Hytest, and Buyer hereby assigns to Hytest all right, title and interest in and to any such changes or modifications. The Buyer undertakes not to take any action, including use of the product, that infringes Hytest’s intellectual property rights. The Buyer shall not modify, alter, translate, reverse engineer, decompile, disassemble or attempt to discover the chemical, scientific or other structure of the products or any derivatives thereof, or use the product in an application or environment for which it was not intended or not contemplated, or to make the products available for third parties as such, unless otherwise authorized by Hytest in writing. ALL USE OF THE PRODUCTS IS SUBJECT TO ANY CONDITIONS, LIMITATIONS, EXCLUSIONS OR INSTRUCTIONS IN THE APPLICABLE DOCUMENTATION. The Buyer is expressly prohibited from using the products, or any parts, modifications or derivatives thereof, as a basis for filing a patent application, claiming a new invention, or seeking any form of patent protection, unless otherwise authorized by Hytest in writing. The Buyer shall ensure that any use of the products does not contribute to or support any patent application filed by the Buyer or any third party.
4. Prices and Terms of Payment
4.1 Unless otherwise agreed in the Agreement, Hytest’s price list effective on the date of order shall apply. The prices are in US Dollars, unless otherwise agreed by the parties in writing. Hytest is entitled to revise its prices at its sole discretion.
4.2 The fees and prices are exclusive of sales, use, excise, value added tax and any other taxes, duty of any kind, export/import costs and other levies or delivery costs, and such taxes and public charges shall be added to Hytest’s invoice. If the Buyer shall be responsible for any taxes and charges which may be levied, assessed or imposed on the use or delivery of the products, the Buyer is not entitled to deduct these taxes and charges from the fees and prices payable to Hytest. Taxes and public charges payable are subject to any changes in taxes or other public charges.
4.3 Hytest shall invoice for the products upon delivery. The term of payment is thirty (30) days net from the date of the invoice. Interest on overdue payments shall be charged at sixteen (16) per cent per annum or, if less, the maximum rate of interest permitted under applicable law. The interest period shall run from the due date for payment until receipt of the full amount by Hytest. In addition to the interest on overdue payments, Hytest shall also be entitled to receive its costs of collection (including reasonable attorneys’ fees) with respect to any overdue amount.
4.4 Hytest may at its sole discretion require an advance payment from the Buyer if the Buyer is a new client of Hytest or if the Buyer has had any previous payment delays. Hytest may suspend or withhold delivery of the ordered product, if the Buyer fails to pay any amount due under the Agreement on the due date for payment. Without affecting any other rights that it may be entitled to, Hytest may give notice in writing to the Buyer terminating the Agreement immediately if the Buyer fails to pay any amount due under the Agreement on the due date for payment and remains in default for at least 90 days after being notified in writing to make such payment.
5. Confidentiality
5.1 Each party shall keep in confidence all material and information received from the other party and marked as confidential or which should be understood to be confidential, and may not use such material or information for any other purposes than those set forth in the Agreement and only to the extent necessitated by the Agreement, and shall have the right to disclose the said material and information to its employees, subcontractors and/or advisors only on a need-to-know basis provided, however, that they are obligated to keep the material and information in confidence and may not use them for any other purpose than the purpose of the Agreement. Each party shall be responsible for its employees' subcontractors' or advisors' acts or omissions that would violate the obligations of confidentiality and restrictions on use in the Agreement. Without prejudice to the generality of the aforesaid, each party agrees to protect the confidentiality of the information at least with the same care as it exercises in respect of its own confidential information and business secrets, but no less than due care.
5.2 The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public through no fault of the receiving party; (b) which the receiving party has received from a third party without any obligation of confidentiality; (c) which was in the possession of the receiving party prior to receipt of the same from the other party without any obligation of confidentiality related thereto; (d) which a party has independently developed without using material or information received from the other party; and/or (e) which a party is obliged to disclose pursuant to a law, decree or other order issued by the authorities or a judicial order, provided that the party subject to such obligation shall, where legally permitted, give to the other party prior written notice of any proposed disclosure, and shall cooperate reasonably with any permitted effort that the other party may make, promptly following such notice, to resist or limit disclosure, provided further that if such effort shall not succeed, the receiving party shall be permitted to make the disclosure.
5.3 Upon the termination, cancellation of expiry of the Agreement or when a party no longer needs the material or information in question for the purpose stated in the Agreement, each party shall promptly cease using confidential material and information received from the other party and, unless the parties separately agree on destruction of such material, return the material in question (including all copies thereof). Each party shall, however, be entitled to retain the copies required by applicable law or regulation.
5.4 The rights and responsibilities under this Section 5 shall survive the termination, cancellation or expiry of the Agreement.
6.1 Neither party shall be liable for failures to fulfil its obligations (other than payment obligations) under the Agreement caused by an event beyond his control, which he could not have reasonably taken into account at the time of the conclusion of the Agreement, and whose consequences he could not reasonably have avoided or overcome including but not limited to accident, explosion, fire, storm, earthquake, flood, drought, the elements, strikes, lockouts, labor disputes, riots, sabotage, terrorist acts, civil war or revolution, war, failure or delay of transportation, the bankruptcy of any supplier, acts of governments and their agencies, and governmental or their agencies’ laws, regulations, rules, orders and decrees, or other legislative, administrative or judicial mandates. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the party concerned is the target or a party to such an action.
6.2 A force majeure event suffered by a subcontractor of a party shall also discharge such party from liability, if subcontracting from other source cannot be made without unreasonable costs or significant loss of time.
6.3 Either party shall without delay inform the other party of a force majeure event in writing. The party shall correspondingly inform the other party of the termination of the force majeure event.
7. Compliance and Data Processing
7.1 The Buyer agrees and acknowledges that it shall comply fully with all applicable laws and regulations in the performance of the Agreement and shall refrain from taking any action that could result in liability for Hytest under any applicable law, including the Foreign Corrupt Practices Act, the Criminal Code of Finland 39/1889, the UK Bribery Act 2010, the OECD Anti-Bribery Convention and any other applicable anti-corruption laws, regulations or conventions.
7.2 The Buyer undertakes to comply with, and ensure its sub-contractors comply with, the United States Export Administration Regulations, United States Office of Foreign Asset Control Sanction Program and any other applicable laws and regulations concerning export control and economic sanctions, and to establish a procedure and take all necessary measures to ensure that the products shall not, directly or indirectly, be provided to any destination or country or to any individual or entity or for any activity or end-use restricted or prohibited by such laws and regulations, unless properly authorized by the appropriate government authorities.
7.3 In case any personal data is processed under this Agreement, the terms set forth in the privacy policy available at www.hytest.fi shall be applicable to such processing activities.
8. Product Liability
8.1 The Buyer shall familiarize itself with the product Documentation and any other literature and technical and scientific documentation provided by Hytest (either with the products, by email or made available online) and shall use the products for their defined purpose and in accordance with such literature and Documentation. Subject to Buyer using the products in accordance with the Documentation and other literature and documentation, and the other requirements of this Agreement, and to the other provisions of this Section 8, Hytest shall defend (at its own cost), indemnify and hold harmless the Buyer from and against claims, losses, liabilities and damages (“Claims”) suffered by or asserted against Buyer alleging that a defect in any product furnished by Hytest under this Agreement, which existed at the time of delivery of the product, caused death or bodily injury to any person.
8.2 Hytest will not be liable for any product or any part of a product that: (a) has been damaged in shipment for which Hytest is not responsible according to the applicable delivery term; (b) becomes defective as a result of an accident after delivery to the Buyer, carelessness, misuse, abuse, improper storage, handling or use, or continued use where the products are unsuitable or fail to provide expected performance levels; or (c) becomes defective as a result of normal wear and tear, nor shall Hytest be obligated under this section to indemnify the Buyer to the extent such Claim, expense or liability results solely from any omission, fault, negligence, or other misconduct of the Buyer or any of its personnel, agents or representatives.
8.3 Buyer’s obligations under this Section 8 shall be subject to Buyer promptly notifying Hytest of any Claim, and giving Hytest full control over any negotiation, settlement or litigation of such Claim.
8.4 Failure to comply with any of the conditions set forth herein shall be deemed a waiver by the Buyer of all claims in respect of such products.
8.5 This Section 8 states the entire liability and obligations of Hytest and the sole and exclusive remedy of the Buyer and its customers for any Claims.
9. Limitations of Liability
9.1 Hytest’s total liability to the Buyer shall not exceed the price of the products subject to the claim.
9.2 Neither party shall be liable to the other party for any indirect, incidental, special, punitive or consequential loss or damage, including but not limited to loss of profits or revenue, loss of use, loss of customers, loss of goodwill, cost of capital or investment, damage caused due to decrease or interruption in production or turnover whether arising under these terms and conditions, tort, or any other theory of liability, or otherwise.
9.3 The limitations of liability and exclusions of damages set forth in this Section 9 shall not apply to damages caused by willful conduct or gross negligence of a party or to damages that cannot be limited due to mandatory applicable laws that cannot be waived, or to the Buyer’s liability under Section 3.3 or Section 5 (Confidentiality).
10. Notices
Any notice, demand or other communication under Agreement by either party shall be in writing and shall be given or made by courier, registered mail or email (with delivery receipt). Any notice or other communication shall be deemed to have been duly received: (i) if delivered by courier, on the date and at the time that the courier's delivery receipt is signed, (ii) if sent by registered mail, on the third business day after posting; or (iii) if sent by email upon the delivery receipt is received.
Each party shall have the right to subcontract its obligations under the Agreement. Each party shall ensure that his subcontractors shall comply with the confidentiality provisions specified in these General Terms and Conditions and shall be responsible for their compliance with such conditions. Each party shall be liable for the work of its subcontractors as for its own.
Neither party may assign or transfer the rights or obligations created through the
Agreement without the prior written consent of the other party. However,
Hytest shall be entitled to assign,
without prior notice or approval, the Agreement and its rights and obligations
under the Agreement, to its affiliates and in connection with a transfer of business, sale of assets or other equivalent
corporate transaction. to a company to whom Hytest’s business or its part is transferred.
13. Entire Agreement and Severability
13.1 The Agreement constitutes the entire agreement between the parties and no amendment hereof shall be effective unless in writing and signed by authorized representatives of the parties.
13.2 Unless set forth in writing and signed by both Hytest and the Buyer, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the General Terms and Conditions and the Agreement shall be binding and no modification shall be effected by the acknowledgment or acceptance of purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to the General Terms and Conditions and the Agreement. Any and all general terms of delivery of the Buyer, or other additional or different terms proposed by Buyer and not specifically agreed to in writing by Hytest are objected to and rejected and will be deemed a material alteration hereof.
13.3 If any provision of the General Terms and Conditions is declared invalid or unenforceable, all other provisions of the General Terms and Conditions shall remain in full force and effect.
Nothing in these General Terms and Conditions shall be construed as creating a partnership, agency, joint venture or any legal entity between Hytest and the Buyer. Neither party shall be deemed to be the representative or agent of the other with respect to the products.
15. Applicable Law and Settlement of Disputes
15.1 These General Terms and Conditions and the Agreement shall be governed by the laws of the State of New Jersey, excluding its choice of law provisions. The Vienna Convention on the International Sale of Goods is excluded.
15.2 Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator agreed upon by the parties or, in the absence of agreement within 20 days after service of the demand for arbitration, appointed by the American Arbitration Association. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Notwithstanding the foregoing, Hytest shall be entitled to pursue claims concerning the collection of outstanding debts in any court having jurisdiction over the Buyer. In addition, either party shall be free to seek injunctive or other equitable relief to enforce this Agreement pending arbitration in any court of competent jurisdiction.
15.3 All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential, except as may be required by law or as may be necessary in order to enforce the award.
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