TERMS AND CONDITION OF SALE
The Terms and Conditions (“Terms”) contained herein shall apply to all quotations and offers made by and purchase orders accepted by SPB Global. These Terms apply to all sales made by SPB Global except to the extent the Terms conflict with a Sales Agreement signed by SPB Global and Buyer. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Buyer. In such case, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgment, by implication, or acceptance and payment of products ordered hereunder. SPB Global’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Any changes in the Terms contained herein must specifically be agreed to in writing signed by an officer of SPB Global before becoming binding on either party.
Prices are subject to change at any time. Prices are for Products only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Products, permits, certificates, customs declarations and registration (collectively, “Additional Fees”). Customer is responsible for any Additional Fees.
Unless otherwise specified, when the price of this Purchase Order is based on the weight of the ordered products, such price is to cover net weight of Products ordered only and no charge will be allowed for boxing, crating, carting, storage or other packing requirements or any allowance for damage in connection with the foregoing. Unless otherwise specified, all Products shall be packed, packaged, marked and otherwise prepared for shipment in a manner which is: (i) in accordance with industry standards and good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular Product and in accordance with ICC regulations, (iii) adequate to insure safe arrival of the Product at the named destination and for storage and protection against weather, and (iv) in compliance with all laws and regulations applicable to the Product. Seller shall mark all containers with necessary lifting, handling and shipping information and also purchase order number, date of shipment and the name of the consignee and consignor. An itemized packing sheet must accompany each shipment unless otherwise specified.
(a) Subject to SPB Global credit approval and unless SPB Global otherwise specifies, all payments are due and payable in full thirty (30) days from the date of invoice. SPB Global requires the disclosure and evaluation of Buyer’s financials to extend credit to Buyer hereunder. SPB Global, at its sole discretion, may change or withdraw Buyer’s credit. All amounts past due will incur a late payment charge at the rate of 1.5% per month or the highest rate permitted by law, whichever is less. Buyer will make payments at the address specified in SPB Global’s invoice. If Products or Services covered by these Terms are not delivered or performed at one time, Buyer will pay for the quantity of Products delivered or Services performed. Each shipment will be considered a separate and independent transaction.
(b) SPB Global’s shipments, deliveries, and performance of work at all times will be subject to SPB Global’s approval of Buyer’s credit. As part of this credit approval, SPB Global may decline to make any shipments or deliveries or perform any work, and/or impose such other terms or conditions or security arrangements as SPB Global, in its sole discretion, deems appropriate.
(c) SPB Global reserves and Buyer hereby grants and will grant to SPB Global a first priority security interest (which will be considered a fixed charge) and mortgage in any Products sold for the period commencing on the date the Products are duly delivered by SPB Global to Buyer until the date that payment of the invoiced amount has been made in full. Buyer will not, without SPB Global’s prior written consent, relocate, sell, lease, or create additional liens other than the security interest and mortgage described herein over the products until it has paid the invoiced amount in full. If Buyer defaults under any obligation hereunder, SPB Global may pursue all remedies of a secured creditor provided under the UCC or other applicable law; furthermore, Buyer agrees to make Products available so that SPB Global can repossess the Products without a breach of the peace and otherwise foreclose the mortgage, as applicable under relevant law. SPB Global may file such financing statements and amendments thereto as SPB Global deems necessary to protect its interest in the Products and to effectuate the purposes of this subsection (c). If Buyer defaults under any obligation, Buyer will make Products available so that Atmel can repossess them without a breach of the peace. SPB Global may file a copy of the invoice with appropriate authorities at any time as a financing statement. Upon SPB Global’s request, Buyer will execute any documents to perfect SPB Global’s security interest in any Products.
Customer acknowledges that the export, re-export, or import into any other country of commodities, technical data, or software purchased from SPB Global (“Controlled Items”) may be subject to the export/import control laws and regulations of the U.S. or other countries, including the Export Administration Regulations (“EAR”) issued by the U.S. Department of Treasury, and the International Traffic in Arms Regulations issues by the U.S. Department of State. Customer agrees and undertakes to comply with all applicable export/import control laws and regulations. In particular:
- Customer certifies that Customer will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any Controlled items to any country, individual, corporations, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organizations, or entity under sanctions or embargoes administered by the U.S. Departments of Treasury or Commerce, or any other applicable government authority.
- Customer certifies that Customer will use the Controlled items for civil end-uses only and will not use them in relation to nuclear, biological or chemical weapons or missile systems or the development of any weapons of mass destruction.
- Customer acknowledges responsibility to obtain any license to export, re-export, import into any other country, or transmit any Controlled items as may be required under any export/import control laws or regulations. Customer will not export, re-export, import to any other country, or transmit any Controlled items except in accordance with the terms of the license issued by any applicable government authority.
- Customer agrees to indemnify SPB Global for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by SPB Global in connection with any violation of U.S. export laws and regulations by Customer.
Compliance with Laws
Seller warrants that no law, rule or ordinance of the United States, a state or any other governmental agency has been violated in the manufacture or sale of the Products or in the performance of Services covered by this Purchase Order, and will defend and hold Buyer harmless from loss, cost or damage as a result of any such actual or alleged violation. Seller further warrants that all Products have been manufactured in accordance with and comply with all laws, rules, regulations, and requirements of all governmental authorities having jurisdiction and have been properly branded, labeled, tagged, marked and/or registered (if required) in accordance with all applicable laws, rules, regulations and requirements, and Seller’s invoices shall bear such separate guarantees provided for under such laws, rules, regulations, and requirements (or the appropriate notices that a continuing guaranty has been properly filed and renewed, if necessary, if permitted in lieu thereof). Upon written request by Buyer, Seller agrees to execute and furnish a certification of compliance, which may be on Buyer’s form and which shall certify compliance with any applicable federal, state and/or local law or regulation, including, but not limited to, FLSA, EEOC, OSHA, Import and Export, and any Economic Control Statutes or Regulations.