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General Terms & Conditions/
1. OFFER, CONFIRMATION OR AGREEMENT
These terms and conditions of commercial sale of Braloba AG/SA, Braloba (HK) Ltd. & Braloba (Thailand) Co., Ltd. (the “Terms and Conditions”) apply to and from an integral part of all quotations and offers made by Braloba AG/SA, Braloba (HK) Ltd. & Braloba (Thailand) Co., Ltd. (“Braloba”), all acceptances, acknowledgements and confirmations by Braloba of any orders by Buyer and any agreements (“Agreements”) regarding the sale by Braloba and purchase by Buyer of goods and services (“Products”), unless and to the extent Braloba explicitly agrees otherwise. Any terms and conditions set forth on any document or documents issued by Buyer either before or after issuance of any document by Braloba setting forth orreferring to these Terms and Conditions are hereby explicitly rejected and disregarded by Braloba, and any such terms shall be wholly inapplicable to any sale made by Braloba to Buyer and shall not be binding in any way on Braloba.
Braloba’ss offers are open for acceptance within the period stated by Braloba in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Braloba at any time prior to the receipt by Braloba of Buyer’s acceptance thereof.
Prices in any offer, confirmation or Agreement, if not other indicated are in Swiss Francs (CHF), US Dollars (USD), Hong Kong Dollars (HKD) or Thai Bath (THB) based on delivery Ex-Works Braloba’s Switzerland, Hong Kong or Thailand facility or other facility designated by Braloba, unless agreed otherwise in writing between Buyer and Braloba and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Braloba will add taxes, duties and similar levies to the sales price where Braloba is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.
(a) Unless agreed otherwise between Braloba and Buyer in writing, Braloba may invoice Buyer for the price of the Products delivered upon delivery of the Products. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Braloba and Buyer in writing. All payments shall be made to the designated Braloba address. If deliveries are made in installments,each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Braloba. In addition to any other rights and remedies Braloba may have under applicable law,interest will accrue on all late payments at the rate of ten percent (10%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.
(b) All deliveries of Products agreed to by Braloba shall at all times be subject to credit approval of Braloba. If, in Braloba’s judgment, Buyer’s financial condition at any time does not justify production or delivery of Products on the above payment terms, Braloba may require full or partial payment in advance or other payment terms as a condition to delivery, and Braloba may suspend, delay or cancel any credit, delivery or any other performance by Braloba.
(c) In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Braloba shall have the right to refuse performance and/or delivery of any Products until payments are brought current and Braloba may suspend, delay or cancel any credit, delivery or any other performance by Braloba. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
4. DELIVERY AND QUANTITIES
(a) Products shall be delivered Ex-Works as designated by Braloba, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Braloba are approximate only, and Braloba shall not be liable for, nor shall Braloba be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. Braloba agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the such delivery date.
(b) Buyer will give Braloba written notice of failure to deliver and twenty (20) days within which to cure. If Braloba does not deliver within such twenty (20) day period, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
(c) Title in the Products shall pass to Buyer upon payment in full of the purchase price in respect thereof. Risk of loss in the Products shall pass to Buyer upon Braloba’s delivery.
(d) In the event Braloba’s production is curtailed for any reason, Braloba shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in the Agreement, as the case may be.
5. FORCE MAJEURE
Braloba shall not be liable for any failure or delay in performance if:
(i) such failure or delay results from interruptions in the Product manufacturing process; or
(ii) such failure or delay is caused by Force Majeure as defined below or by law. In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues,without Braloba being responsible or liable to Buyer for any damage resulting there from.
The expression "Force Majeure" shall mean and include any circumstances or occurrences beyond Braloba’s reasonable control - whether or not foreseeable at the time of the Agreement - as a result of which Braloba cannot reasonably be required to execute its obligations including force majeure and/or default by one of Braloba’s suppliers. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Braloba to extend for a period of three (3) consecutive months), Braloba shall be entitled to cancel all or any part of the Agreement without any liability towards Buyer.
6. LIMITED WARRANTY AND DISCLAIMER
(a) Braloba warrants that under normal use in accordance to the Products, shall,at the time of delivery to Buyer and for a period of six (6) months from the date of delivery (or such other period as may be agreed upon in writing by the parties),be free from defects in material or workmanship and shall substantially conform to Braloba’s specifications for such Product, or such other specifications as Braloba has agreed to in writing, as applicable. Braloba’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Braloba’s option, either to the replacement or repair of a defective or non-conforming Product or to an appropriate credit for the purchase price thereof. Braloba will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Braloba’s
property as soon as they have been replaced or credited.
(b) Buyer may ship Products returned under warranty to Braloba’s designated facility only in conformance with Braloba. Where a warranty claim is justified,Braloba will pay for freight expenses. Buyer shall pay for returned Products thatare not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
(c) Notwithstanding the foregoing, Braloba shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.
(d) The express warranty granted above shall extend directly to Buyer and not to Buyer’s customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by Braloba.
(e) Subject to the exclusions and limitations set forth in Section 8 of the Terms and Conditions, the foregoing states the entire liability of Braloba in connection with defective or non-conforming Products supplied hereunder.
7. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
(a) Braloba, at its sole expense, shall: (i) defend any legal proceeding brought by a third party against Buyer to the extent that the proceeding includes a claim that any Product as furnished by Braloba under an Agreement directly infringes the claimant’s patent, copyright, trademark, or trade secret; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement.
(b) Braloba shall have no obligation or liability to Buyer under Section (a) (1) if Braloba is not: (i) promptly notified in writing of any such claim; (ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable
assistance and cooperation by Buyer in such investigation, preparation,settlement and defense; (2) if the claim is made after a period of three (3) years from the date of delivery of the Product.
(c) If any Product is, or in Braloba’s opinion is likely to become, the subject of a claim of infringement as referred to under Section 8 (a) above, Braloba shall have the right, without obligation and at its sole option, to: (i) procure for Buyerthe right to continue to use or sell the Product; (ii) provide replacement Product, or (iii) modify the Product in such a way as to make the modified Product non- infringing; or (iv) terminate any Agreement to the extent related to such Product.
(d) Subject to the exclusions and limitations set forth in Section 9 of the Terms and Conditions, the foregoing states Braloba’s entire liability and obligation to Buyer and Buyer’s sole remedy with respect to any actual or alleged infringement of any intellectual property rights or any other proprietary rights of any kind.
8. LIMITATION OF LIABILITY
(a) BRALOBA SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT,INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE
SALE OF ANY PRODUCTS OR SERVICES BY BRALOBA OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT,WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF BRALOBA HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. BRALOBA’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS BUYER UNDER ANY AGREEMENT SHALL NOT EXCEED AN AMOUNT OF TEN PERCENT (10%) OF RELATED AGREEMENT.
(b) Any Buyer’s claim for damages must be brought by Buyer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the
preceding sentence are null and void.
(c) The limitations and exclusions set forth above in this Section 9 shall apply only to the extent permitted by applicable mandatory law.
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Braloba and/or its affiliates is the confidential information of Braloba and/or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
10. EXPORT/IMPORT CONTROLS
If the delivery of Products under the Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Braloba may suspend its obligations and Buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Braloba may even terminate the Agreement, without incurring any liability towards Buyer. Furthermore, if an end-user statement is required, Braloba shall inform Buyer immediately thereof and Buyer shall provide Braloba with such document upon Braloba’s first written request; if an import license is required, Buyer shall inform Braloba immediately thereof and Buyer shall provide Braloba with such
document as soon as it is available.
By accepting Braloba’s offer, entering into any Agreement and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
11. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of Braloba. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer
may have with Braloba or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
12. GOVERNING LAW AND FORUM
All offers, confirmations and Agreements are governed by and construed in accordance with the laws of Switzerland, Hong Kong & Thailand. All disputes arising out of or in connection with any Agreement shall first be attempted by Buyer and Braloba to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Hong Kong, provided that Braloba shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Agreement. Nothing in this Section 12 shall be construed or interpreted as a limitation on either Braloba’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
13. BREACH AND TERMINATION
Without prejudice to any rights or remedies Braloba may have under the Agreement or at law, Braloba may, by written notice to Buyer, terminate with immediate effect the Agreement or any part thereof without any liability
(a) Buyer violates or breaches any of the provisions of the Agreement;
(b) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer. Upon occurrence of any of the events referred to above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.In the event of cancellation, termination or expiration of an Agreement the terms and conditions destined to survive such cancellation, termination or expiration shall so survive.
(a) In the event that any provision(s) of these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. In the event that any provision of these Terms and Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these Terms and Conditions, but every other provision shall remain in full force and
effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
(b) The failure on the part of either party to exercise, or any delay in exercising,any right or remedy arising from the Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.
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