PURCHASE ORDER TERMS AND CONDITIONS
Policies and Legal
Policies, Terms & Conditions
Sections
Applicability
This purchase order is an offer by Amtech Solutions. (the “Buyer”) for the purchase of the goods (“Goods”) and/or services (“Services”)(the Goods and/or Services purchased hereunder may also be referred to individually or collectively as the “Purchased Items”) specified on the face of this purchase order from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. These Terms apply to any repaired or replacement Purchased Items provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
Acceptance
This Order is not binding on Buyer until Seller accepts the Order in writing or starts to perform in accordance with the Order. If Seller does not accept the Order in writing or provide written notice that it has commenced performance within ten (10) days of Seller’s receipt of the Order, Buyer may withdraw the Order at any time before it is accepted by Seller.
Delivery Date
Seller shall deliver Purchased Items on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of Purchased Items is of the essence. If Seller fails to deliver Purchased Items in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller. Seller shall redeliver such Goods on the Delivery Date.
Quantity
If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
Delivery Location
All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer. All Services shall be provided at Seller’s address and/or Buyer’s address specified in this Order, or at such other locations as mutually agreed in writing by Buyer and Seller.
Shipping Terms
Delivery of Goods shall be made according to the terms listed on the Purchase order. Seller shall give written notice of shipment to Buyer when Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release Goods to Buyer. All international shipments of Goods must have accurate import and/or export values. Buyer will not accept charges other than for the carriage of the goods unless previously agreed in writing.
Packaging
All Goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. All Goods must be packaged in accordance with IPC/JEDEC J-STD-033 for moisture sensitive Goods and JESD625 for ESD sensitive Goods. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material.
Amendment and Modification
No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
Inspection and Rejection of Nonconforming Goods
The Buyer has the right to inspect Goods on or after the Delivery 20 days. Buyer, at its sole option, may inspect all or a sample of Goods, and may reject all or any portion of Goods if it determines the Goods are nonconforming or defective. All Goods substitutions will be rejected. If Buyer rejects any portion of Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and terminate this Order in accordance with the terms of the contract. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
Price
The price of Purchased Items is the price stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging and applicable taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
Payment Terms
Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Unless otherwise agreed in writing by both parties, Buyer shall pay all properly invoiced amounts due to Seller after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than ten (2) days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
Document Retention
Seller shall maintain copies of all documentation and other data relating to Purchased Items for no less than ten (10) years from the Order date.
Warranties
Unless otherwise stated in the purchase order, Seller warrants to Buyer that for a period of three (3) years from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; (f) not infringe or misappropriate any third party’s patent or other intellectual property rights; (g) be new, unused and in the original manufacturers packaging; and (h) be free of any unapproved or counterfeit parts. Seller warrants that all Services will: (a) conform to the applicable specifications and other requirements specified by Buyer; (b) be performed in a professional manner in accordance with industry standards, and (c) not infringe or misappropriate any third party’s patent or other international property rights. Seller shall notify Buyer immediately after it becomes aware of a breach of the any of the forgoing Purchased Items warranties. At Buyer’s request, Seller shall provide a Certificate of conformity, test reports, or authorized release certificates, as applicable, with respect to any Purchased Items. These warranties survive any delivery, inspection, acceptance or payment of or for Purchased Items by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Purchased Items with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace, repair, or reperform (in the case of Services) the defective or nonconforming Purchased Items and pay for all related expenses, including, but not limited to (in the case of Goods), transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
General Indemnification
Seller shall defend, indemnify and hold harmless Buyer its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss,liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Purchased Items purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
Consolidation
Multiple orders or multiple units shipping to the same Buyer location on the same day shall be consolidated into one shipment as opposed to multiple shipments to the Seller location. Failure to consolidate may result in chargebacks of the amount of freight for the multiple shipments versus the single consolidated shipment.
Compliance With Law
Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Purchased Items under this Order.
Waiver
No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential Information
All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
Force Majeure
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than fifteen (15) business days, Buyer may terminate this Order immediately by giving written notice to Seller.
Governing Law
All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the Hong kong，China without giving effect to any choice or conflict of law provision or rule (whether of the Hong kong，China or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Hong kong，China.
Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the Hong kong，China, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding
Notices
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be email or in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.