LOROM INDUSTRIAL CO., LTD.
Fl. 13, Rm. 2, No. 78, Sec. 2
An-Ho Road, Taipei, Taiwan, R.O.C.
Phone: 886-2-2706-6037 FAX: 886-2-2706-4928
TERMS & CONDITIONS OF BUSINESS
SECTION I: SCOPE
The “Terms & Conditions” set forth herein are those of the Lorom Industrial Co., Ltd. of Taipei, Taiwan, R.O.C., including any and all of its Affiliate/Subsidiary Companies and Agents (hereinafter referred to as the “Company”). Accordingly, these “Terms & Conditions” shall apply to and override any and all other terms and conditions to the contrary, including those stated on purchase orders received by the Company and/or contracts entered into by the Company, unless otherwise specifically provided for, in writing, with respect to any and all business transactions or activities conducted between and/or entered into by the Company and its customers or prospective customers (hereinafter referred to as the “Customer” or “Customers”)
SECTION II: MODIFICATION OF TERMS & CONDITIONS
(i) No price(s) quoted by the Company, or any of the “Terms & Conditions” set forth herein, may be changed or modified, in any way, without the prior written approval of a duly authorized representative of the Company (i.e., an “Officer” or an “Authorized Agent”).
(ii) The Company reserves the right, from time-to-time, to change its quoted price(s) and/or alter its stated “Terms & Conditions of Business.” In any and all such instances, the Company will provide its Customer(s) with thirty (30) days advance written notice of any such changes, after which time, said changes shall become effective, unless otherwise mutually agreed to, in writing, between the parties.
SECTION III: QUOTATIONS
(i) No price quotation(s) for any of the Company’s products and/or services shall be considered valid or binding, in any way, unless set forth in writing on a formally identified “Quotation Form” bearing the Company’s official letterhead and signed by a duly authorized “Officer” or “Agent” of the Company. Each such “Quotation Form” shall bear a unique “Reference Number,” tying the quotation to the specific business opportunity being quoted; including, but not limited to, such issues as design, applicable specifications, packaging, consignment of materials, etc.
(ii) Unless otherwise specified, any and all quotations for the Company’s products and/or services shall be made in U.S. Dollars and, generally, remain valid for a period of ninety (90) days after the date of said quotation. Any and all quotations made in currencies other than U.S. Dollars shall, generally, remain valid for a period of thirty (30) days after the date of said quotation.
(iii) In the event of any and all changes made to or proposed to be made to the product(s) and/or service(s) originally quoted by the Company, or in the case of economic conditions beyond the Company’s control, the Company reserves the right to either withdraw or alter its originally submitted quotation for the provision of goods and/or services. In the case of any such event, the Company shall provide the Customer advance written notification, as to its intended course of action, which, upon delivery, shall become effective immediately; unless otherwise mutually agreed to, in writing, and signed by the duly authorized representatives of the parties.
(iv) Unless otherwise specifically provided for, in writing, any and all quotations issued by the Company shall be understood to only be inclusive of the Company’s “normal/standard” levels of inspection and/or testing, as may be determined in its (the Company’s) sole discretion.
SECTION IV: PRICING & PURCHASE ORDERS
(i) Any and all sales to any Customer will be based solely on the drawing(s), specification(s), other requirements, quantities specified, and at the prices specified on the Company’s formal “Quotation Form,” as evidenced by a dated copy of same, bearing an identifying “Reference Number.”
(ii) Any and all purchase orders for the Company’s product(s) and/or service(s) must be placed in writing, or via an electronic facsimile of a handwritten purchase order, bearing the official letterhead of the Customer. Correspondingly, any and all such purchase orders shall be placed on the Lorom Industrial Co., Ltd. of Taipei, Taiwan, R.O.C., unless otherwise specifically provided for, in writing, based upon an overriding “Purchase Agreement” between the parties.
(iii) Any and all purchase orders received by the Company, from whatever source or channel, are subject to formal acceptance by the Lorom Industrial Co., Ltd. of Taipei, Taiwan, R.O.C., as evidenced by a dated copy of its formal “Order Acknowledgement Form,” or an electronic facsimile thereof, bearing the Company’s official letterhead. Absent a dated copy or dated facsimile of said “Order Acknowledgement Form,” a purchase order will be considered as either being not yet received or not yet accepted by the Company.
(iv) Purchase orders placed on the Company may be scheduled for delivery over a period of twelve (12) months from the date of the initial purchase order. However, in any and all instances wherein the price(s) quoted by the Company reflect price breaks, and the quantities actually shipped over the twelve-month (12-month) period, after the date of the initial purchase order, do not equal or exceed the quantities initially ordered, the Company reserves the right to bill the Customer for any unit price differential between the quantity ordered and the quantity
actually shipped.
(v) In the event of any change(s), during the course of servicing an order, in the design(s), specification(s), and/or other requirements, either included in or encompassed by the initial quotation pertaining to said order, the Company reserves the right to adjust its pricing for the product(s) and/or service(s) to be provided after the effective date of any such change(s).
(vi) Quantity additions to open purchase orders will be accepted by the Company at the unit price(s) applicable to the Customer’s initial purchase order for the product(s) and/or service(s) involved, up to a period of time sixty (60) calendar days prior to the last scheduled delivery for such product(s) and/or service(s). Thereafter, the Company reserves the right to charge a different quantity-break price for any such purchase order add-ons.
(vii) Scheduled deliveries against any open purchase order(s), beyond sixty (60) calendar days from the effective date of any cancellation, may be cancelled without obligation to the Customer, except for the unit price adjustment provision specified in Item (iv) of this SECTION IV above. Any and all cancellations inside of sixty (60) calendar days of the scheduled date(s) of delivery will be subject to full cancellation charges, including any and all finished goods scheduled for delivery within sixty (60) calendar days of the effective date of cancellation (at the applicable selling price(s)), the cost of any and all raw materials and/or components instock (applicable to goods scheduled for delivery inside of ninety (90) calendar days of the effective date of cancellation (in excess of the aforementioned finished goods charge, including a normal level of profit on same), and the amount of any and all unamortized tooling involved.
(viii) The Company reserves the right to refuse any purchase order(s) placed on it by any and all Customers , regardless of the point and/or source of origin, due to either a real or perceived lack of credit worthiness on the part of the Customer, or for any other reason(s), which, in the sole judgment of the Company, reasonably warrant sufficient grounds for the refusal of same.
SECTION V: DELIVERY & SHIPMENT OF PRODUCT
(i) Delivery dates quoted and/or acknowledged by the Company are approximate, and are based on the assumption of the prompt receipt of any and all necessary information and/or materials to be provided by the Customer, and the absence of any other extenuating circumstance(s) beyond its direct control. Accordingly, the Company shall not be responsible for any shipping delays or non-deliveries due to any and all causes beyond its direct control, including, but without limitation, acts of God, the action(s) or inaction(s) of the Customer, acts of civil or military authority, labor disputes or disturbances, man-made disasters, etc. Moreover, under no circumstance, shall the Company be deemed to be or held liable for any shipping delays or delivery failures, unless it fails to commence cure actions within fifteen (15) calendar days, after the receipt of written notice as to such delays (either impending or incurred) from the Customer, or as may be otherwise mutually agreed to, in writing, on the face of the applicable purchase order(s) or in an overriding “Purchase Agreement.”
(ii) Any and all shipments of product(s) purchased from the Company shall be made “F.O.B. Port of Embarkation” (i.e., Hong Kong, Shanghai, or Taipei), unless otherwise provided for, in writing, on the face of the applicable purchase order(s) or in an overriding “Purchase Agreement.” Accordingly, it is hereby understood and agreed to that, unless otherwise provided for, in writing, the delivery of all product(s) manufactured by the Company shall be considered complete upon the transfer of “Title to Goods,” which shall occur and pass to the Customer at the contracted F.O.B. point.
(iii) Unless otherwise specified by the Customer on the face of the applicable purchase order(s) or in an overriding “Purchase Agreement,” and agreed to by the Company, it is hereby understood and agreed that, the Company will, in its sole discretion, select and execute what it deems to be the most suitable means/method(s) of shipment at any and all times, in accordance with the selling price(s) formally quoted to the Customer.
(iv) Any and all requests for changes to the formally scheduled deliveries of acknowledged, open purchase orders and/or proposed add-ons to open, acknowledged purchase orders must be submitted by the Customer to the Company, in writing, and be subsequently acknowledged by the Company. In any and all such instances, involving the pull-in of previously scheduled orders and/or proposed order add-ons, the Company reserves the right to charge reasonable expediting and/or overtime fees. Conversely, in any and all instances involving a Customerinitiated extension of any scheduled delivery, relative to an acknowledged, open purchase order, it is hereby understood and agreed to that, any such reschedule(s) may not be extended beyond twelve (12) months from the date of the initial order. Accordingly, in the case of the latter, the Customer shall be liable for the delivery of all rescheduled finished product(s) and/or related raw materials and components (including a normal level of profit on such raw materials and components) at the end of twelve-months (12-months) from the date of the initial purchase order.
(v) In those instances where the reason for the delay of shipment is within the Company’s direct control, the Company will execute shipment via the fastest means, at the Customer’s sole discretion, and underwrite any shipping cost differential involved, versus the contracted means/method(s) of shipment. In no way, however, shall the Company be responsible for or held liable for any additional costs beyond the aforementioned differential in shipping costs.
SECTION VI: TERMS, MEANS & METHOD OF PAYMENT
(i) Unless otherwise provided for, in writing, all invoices for the product(s) and/or service(s) provided by the Company shall be issued under the official letterhead of the Lorom Industrial Co., Ltd. of Taipei, Taiwan, R.O.C., or its designated Affiliate/Subsidiary Company. Regardless of the source of invoice, the Company’s payment terms for any and all invoices for product(s) and/or service(s) are Net Thirty (30) Days from the date of transfer of “Title to Goods,” as provided for in the business agreement between the parties.
(ii) Unless otherwise provided for, in writing, all invoice payments made to the Company shall be made via wire/electronic transfer from the Customer’s bank of choice to the bank and bank account specified on the Company’s invoice. Moreover, unless also otherwise specified, in writing, all such payments shall be made in U.S. Dollars.
(iii) At its sole discretion, the Company reserves the right to assess an interest charge, at a rate equivalent to the prevailing monthly average U.S. “Prime Rate” of interest per annum (Simple Interest) on any and all unpaid balances outstanding beyond the Net Payment Terms stated in Item (i), of this SECTION VI above, calculated on a daily basis from the date such sum is due until the date of actual payment.
(iv) Any failure on the part of the Customer to pay in accordance with the herein specified Net Payment Terms, including the failure to pay any and all properly assessed interest charges, may, as generally provided for in Item (viii), SECTION IV above, affect the acceptance of any future purchase order(s) from, or the delivery of any existing acknowledged delivery schedule(s) to the Customer.
SECTION VII: RETURNED MATERIALS & CREDITS
(i) Any and all returned material(s) manufactured by the Company will only be accepted for return on the basis of claims relating to defects in materials and/or workmanship. All such returns must be authorized, in writing, by the Company before any return shipment(s), as evidenced by a dated copy of the Company’s formal “Returned Material Authorization Form,” which shall contain an identifying “Reference Number,” and which shall specify the manner of shipment by which the material(s) are to be returned, and the location of the Company to which such material(s) should be returned. Once duly authorized, all shipments of “Returned Material” will be authorized by the Company as returnable, F.O.B., Point of Origin. Relatedly, the Company reserves the right to reject any “authorized” return material shipments that are non-conforming in the manner of shipment and/or Point of Destination, as are specified on its formal “Returned Material Authorization Form.
(ii) Credits for any returned material(s), found to be defective, will be made to the Customer’s account within fifteen (15) calendar days after its receipt by the Company. In the event that the returned material(s) is/are found to be in conformance with the Customer’s contracted specification(s), then no credit for the material will be issued, and the Customer’s account will be charged for all transportation and handling charges associated with the return, subject to any and all of the payment terms specified in SECTION VI herein above.
(iii) The Company reserves the right to refuse acceptance of any returned material(s) not formally authorized in accordance with the procedure specified in Item (i) of this SECTION VII above.
SECTION VIII: RELATED RIGHTS & ASSURANCES
In the course of doing its business, the Company assumes no obligation to sell, manufacture, supply, or warrant (except as otherwise provided for herein), or to continue, discontinue, or change/modify any of its product and/or service offerings. Nevertheless, the Company extends the following assurances to its Customer(s):
(i) The Company will not cease production of any Customer part number(s) that is has either quoted or produced during the immediately preceding twelve (12) calendar months, without providing the Customer three (3) months advance written notice of its decision to discontinue production. Correspondingly, any and all existing acknowledged purchase orders for the item(s) to be discontinued will be produced and delivered in accordance with the acknowledged terms and conditions, price(s), and scheduled delivery date(s).
(ii) In the event of a decision by the Company to discontinue any future production of a given Customer part number or set of Customer part numbers, the Company will, at the time of notice to the Customer, allow the Customer to place a final order for the part number(s) to be discontinued, provided that said final order(s) is/are placed within thirty (30) calendar days of the Company’s discontinuation notice, and is/are deliverable in its/their entirety within ninety (90) calendar days after the placement date of said final order(s).
(iii) The Company’s “Standard” twelve-month (12-month) “Limited Warranty,” as herein below defined, will apply to any and all discontinued items that have been produced against any purchase order(s) that has/have been formally acknowledged by the Company.
SECTION IX: WARRANTIES & DISCLAIMERS
(i) The Company warrants that all product(s) of its design will conform to and comply with any and all contracted performance specifications at the time of delivery. Correspondingly, the Company also warrants that all such products shall, at the time of delivery and for a period of one (1) year thereafter, be free of any defects in either material or workmanship, provided that it/they has/have not been modified, in any way, from its/their original state at the time of initial delivery.
(ii) The Company warrants that all product(s) of the Customer’s design shall conform to and comply with the Customer’s design(s) and any and all mutually agreed to related specifications, as are stated on the Company’s official “Quotation Form” and subsequently accepted by reference on the Company’s official “Order Acknowledgement Form,” at the time of delivery. Correspondingly, the Company also warrants that all such products shall, at the time of delivery and for a period of one (1) year thereafter, be free of any defects in either material or workmanship, provided that it/they has/have not been modified, in any way, from its/their original state at the time of initial delivery.
(iii) In no instance shall the Company, under any circumstance, warrant or be held liable for any defect(s) in and/or failure(s) of any product(s) of its manufacture that has/have been altered, in any way, by the Customer or any other subsequent user(s) of said product(s), after the initial delivery of said product(s) to the Customer. Moreover, the Company shall not warrant or be liable for any defect(s) in and/or failure(s) of any product(s) of its manufacture that arise as a result of the Customer’s or any other subsequent user’s misuse, neglect, improper installation, repair, alteration, misapplication, or accident incurred with respect to any and all of the products delivered hereunder.
(iv) Specifically, the Company’s warranty for any and all product(s) of its manufacture, regardless of the underlying source(s) of design, is limited to either the repair and/or the replacement of any qualifying defective product(s), or the refund of any amount(s) paid by the Customer for said qualifying defective product(s), at the Company’s sole discretion. Moreover, in no instance and under no circumstance, whatsoever, shall the Company be held liable for any imputed loss of profit, loss of stored data, or damage to any equipment or property used in conjunction with any product(s) delivered hereunder, whether or not used properly, or any other incidental, consequential, or special damages.
(v) THIS LIMITED WARRANTY, AS SET FORTH IN THIS SECTION IX, CONSTITUTES THE ENTIRE EXTENT OF THE COMPANY’S LIABILITY FOR ANY AND ALL DEFECTIVE PRODUCT(S) DELIVERED HEREUNDER. THE COMPANY MAKES, AND THE CUSTOMER AND/OR ANY AND ALL OTHER SUBSEQUENT USERS OF THE PRODUCT(S) DELIVERED HEREUNDER RECEIVES, NO OTHER WARRANTY, EITHER EXPRESSED OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED HEREFROM ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND/OR USE (except as may otherwise be provided for herein). IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCURRED BY THE CUSTOMER OR ANY OTHER PERSON OR ENTITY. IF FOR ANY REASON THE FOREGOING LIMITATION OF LIABILITY IS VOIDED, OR IS DEEMED TO BE NOT EFFECTIVE, THE CUSTOMER AGREES THAT THE COMPANY’S MAXIMUM LIABILITY FOR ANY AND ALL DAMAGES SHALL NOT EXCEED THE AMOUNT OF ANY PAYMENTS MADE BY THE CUSTOMER FOR ANY DEFECTIVE PRODUCT(S) DELIVERED HEREUNDER.
SECTION X: LIABILITIES
(i) The Company shall be solely responsible for the development, production, supply, and performance of any and all product(s) of its design, and for the protection of any and all of its related patents, trademarks, trade names, copyrights, or any and all other designated “Proprietary and/or Confidential Information” wherein it claims an “Intellectual Property” interest and/or ownership, except as may be otherwise mutually agreed to, in writing, between the Company and the Customer.
(ii) The Customer shall be solely responsible for the development and performance of any and all product(s) of its design, and for the protection of any and all of its related patents, trademarks, trade names, copyrights, or any and all other designated “Proprietary and/or Confidential Information” wherein it claims an “Intellectual Property” interest and/or ownership, except as may be otherwise mutually agreed to, in writing, between the Company and the Customer.
SECTION XI: INDEMNITIES
(i) The Company shall indemnify and hold the Customer harmless from and against, and pay all losses, costs, damages, or expenses (including reasonable attorney’s fees), which the Customer may sustain or incur on account of the infringement or alleged infringement of any patents, trademarks, copyrights, or trade names resulting from the sale of any product(s) of the Company’s design and manufacture delivered hereunder, except in the case of any negligent, misleading, or unlawful act(s) on the part of the Customer. This indemnity does not apply to
any design(s) of the Customer, or to any design(s) submitted to the Company by the Customer.
(ii) The Customer shall indemnify and hold the Company harmless from and against all liabilities, and pay all losses, costs, damages, or expenses (including reasonable attorney’s fees), that may arise from or be asserted by any of the Customer’s customers or any other third party as a result of any act(s) of omission or commission on the part of the Customer, or arising out of or connected with any and all claims, actions, or proceedings brought or made against the Company for the infringement or alleged infringement of any and all patents, trademarks, copyrights, or trade names related to the Company’s compliance with the Customer’s
design(s), specification(s), or instructions.
(iii) The Customer shall indemnify and hold the Company harmless from and against all liabilities, and pay all losses, costs, damages, or expenses (including reasonable attorney’s fees), that may arise from or be asserted by any of the Customer’s customers or any other third party as a result of any act(s) of misrepresentation, misuses, or misapplication on the part of the Customer or any other third party, relative to any product(s) manufactured and delivered by the Company hereunder, that result in the injury or death of any person, the damage to any property, or the non-performance of any product(s), with respect to the Customer’s design(s), specification(s), or instructions.
