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United States Terms & Conditions
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- GENERAL The following terms and conditions ap-ply to all sales of goods and services (collectively, “Products”) by Volpi Manufacturing U.S.A., Co., Inc. (“VOLPI”, “we”, “us” or “our”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between you and VOLPI re-lating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any “Terms and Conditions of Purchase” published by Customer), unless otherwise specifically agreed to in a writing signed by VOLPI’s authorized representative. Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein, is hereby expressly rejected, and VOLPI’s acceptance of any order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof. Customer’s acceptance of delivery of any Products constitutes Customer’s acceptance of these terms and conditions.
- PRICE The prices applicable to the Products shall be as quoted by VOLPI to Customer and are subject to change. Unless otherwise specified, prices quoted for Products are in US Dollars. Stenographic and cler-ical errors are subject to correction. A quotation is not a contractual offer and any order resulting from a quo-tation is subject to approval and acceptance by VOLPI. Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer, un-less Customer provides VOLPI with a tax exemption certificate acceptable to the appropriate taxing authori-ties and presented at or before the time of purchase. No sales tax refunds will be given at any time for any reason. Any taxes paid by VOLPI on Customer’s be-half shall be reimbursed by Customer upon demand.
- PURCHASE ORDER PROCESS Customer shall place orders for the Products to be purchased here-under by submitting one or more purchase orders to VOLPI. Each such purchase order is intended for convenience only and shall state the descriptions and quantities of Products being ordered and the request-ed shipments dates for such Products. In no event shall any terms and conditions set forth on a purchase order submitted by Customer other than the terms and conditions set forth herein, including, without limita-tion, any preprinted terms and conditions of Customer, be binding on VOLPI. In addition, no purchase order shall be binding on VOLPI until VOLPI has accepted such purchase order by written acknowledgement or by shipment of the Products applicable to such pur-chase order. Orders for the purchase of Products when made by the Customer shall be considered ir-revocable for such Customer.
- PAYMENT TERMS Unless otherwise agreed to by VOLPI in writing, payment terms shall be net thirty (30) days from the date of invoice. If shipments are delayed by Customer, invoices may be rendered on the date(s) VOLPI is prepared to make shipment(s). Any Product held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maxi-mum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event VOLPI engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price including in-terest, be liable for all costs and expenses of such le-gal action or suit (including reasonable attorney’s fees).
In addition, VOLPI reserves the right to require COD payment terms from any customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. VOLPI may also refuse to sell to any person until overdue ac-counts are paid in full.
- SHIPPING POINT AND TRANSPORTATION Shipment/delivery dates are approximate and are de-termined from the date of VOLPI’s acceptance of an order. All Products will be shipped F.O.B. VOLPI’s point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by VOLPI to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by VOLPI, if so required by the carrier. All shipment costs shall be paid by Customer, and if prepaid by VOLPI, the amount thereof shall be reimbursed to VOLPI.
- DELIVERY VOLPI will make every effort to deliver the Products hereunder in accordance with the re-quested delivery date, provided that VOLPI shall not be liable for any delay in delivery due to causes be-yond our reasonable control, such as acts of God, acts of the government, strikes, war, delays of carri-ers, or inability to obtain necessary material or manu-facturing facilities. VOLPI shall not be liable for anydamages or penalties whatsoever whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to per-form or delay in performing unless otherwise agreed in writing by an authorized officer. Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions. VOLPI reserves the right to deliver the Products in installments unless expressly prohibited in the applicable purchase order. Installment deliveries will be invoiced by VOLPI at time of shipment unless otherwise agreed in writing by VOLPI. Delay in any installment delivery shall not re-lieve Customer of its obligation to accept all remaining installment deliveries pursuant to a purchase order.
- CHANGES TO ORDERS Unless otherwise agreed to by VOLPI in writing, changes in materials, supplies, labor and/or changes made at the request of Customer shall be at the expense of Customer. Changes or alterations made by Customer or made by VOLPI (over its recommendation against the same) shall be at Customer’s sole risk and responsibility. VOLPI reserves the right to make changes to the design and composition of its Products which in its judgment do not materially change the nature or quality of the Products.
- CANCELLATION OF ORDERS Due to the special-ized nature of the Products, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including VOLPI’s actual out of pocket costs, overhead and anticipated profit (as determined by VOLPI). Partial cancellation of an order may result in adjustment of prices for the balance of the order.
- REJECTION Customer’s right to reject any Prod-ucts supplied hereunder is conditioned upon Custom-er giving VOLPI a written notice of rejection setting forth the basis thereof within ten (10) days after deliv-ery of the Products to Customer. Failure to give such notice within such time constitutes acceptance of such Products. Products may be returned only when au-thorized by VOLPI in writing, and then only on such terms as VOLPI may specify. All returned Products shall be returned with shipping prepaid.
- LIMITED WARRANTIES; DISCLAIMERS
- (a) VOLPI represents and warrants that the Products delivered by VOLPI to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials. The foregoing warranties shall be limited to a one (1) year period commencing on the date of shipment of the applicable Product(s) (the “Warranty Period”) provided (i) the Products have been properly cared for (i.e. the Products have not been subject to misuse, neglect, misapplication, etc.) and used in ac-cordance with VOLPI’s instructions, if any, (ii) the Products have not been tampered with or modified without VOLPI’s prior written approval, and (iii) Cus-tomer promptly notifies VOLPI in writing of any war-ranty claim during the Warranty Period. In the event any Product fails to meet either or both of the forego-ing warranties, VOLPI’s sole obligation, in VOLPI’s sole discretion, shall be to either replace or repair the non-conforming Product. The foregoing warranties provided by VOLPI in this Section 10 are the only war-ranties provided by VOLPI with respect to the Product(s) sold hereunder, and may be modified or amended only by a written instrument signed by VOLPI. Customer’s remedies and VOLPI’s aggregate liability with respect to the warranties pro-vided by VOLPI in this Section 10 are set forth in and limited by this Section 10 and Section 11 below.
- (b) VOLPI’s warranties above do not apply to Prod-ucts not manufactured by VOLPI and do not apply to components furnished by third parties. In addition, such warranties shall be for the sole benefit of the original customer only and are not assignable unless otherwise agreed to in writing by VOLPI. VOLPI shall not be liable for any claim if alterations have been made to the Products by the Customer or others with-out VOLPI’s written consent. Any components fur-nished by third parties are warranted only to the extent of the original manufacturer’s warranty to VOLPI and then only if such original manufacturer’s warranty is assignable to Customer.
- (c) THE EXPRESS WARRANTIES OF VOLPI STATED IN SECTION 10(a) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VOLPI’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION 10. Any sample or literature exhibited to Customer was to illustrate the type of good and/or service and not an affirmation that the Product will conform. No employee or representative of VOLPI has authority to bind VOLPI to any representation, affirmation or warranty not specifically included herein.
- LIMITATION OF LIABILITY Notwithstanding any-thing to the contrary contained in this Agreement, VOLPI’s aggregate liability in connection with the sale or use of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in con-tract, tort or otherwise), shall not exceed the aggre-gate purchase price for Products paid by Customer to
Switzerland Terms & Conditions
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- Applicability – All offers of products, services and delivery are made exclusively on the basis of the following provisions, insofar as they have not been expressly excluded or changed. Acceptance of our offers, order confirmations and invoices shall constitute acknowledgement of our terms. Our written consent is required in any case for variances.
- Scope of delivery – The order confirmation shall prevail with respect to the scope and execution of the delivery. Order confirmations are normally not sent for deliveries ex warehouse.
- Pricing – All prices apply in the currency shown, ex factory, unpackaged, insured in each case. All other costs (VAT, freight, customs duty, charges and fees etc.) shall be borne by the customer. Special packaging is charged according to effort expended. The price lists valid at the time of the order shall apply or the prices stated in an offer that is still valid. The prices offered apply only if the characteristics and quantities stated in an offer are ordered without change or reductions. The prices are calculated on the basis of the costs that apply on the date of the offer. We therefore reserve the right to adjust the prices to new conditions if the circumstances that guided the pricing have changed significantly, even for deliveries that have not yet been made.
- Blanket orders and/or call-off orders – The customer submits a blanket order in which the quantity is based on a maximum of the requirements for one year. The term of the order runs for a maximum of 12 months as of the start of the first delivery date. If no first delivery date is established when the order is issued, the term of the order shall be 12 months as of the date of the order. If the agreed blanket total quantity is not purchased by the customer by the end of the agreed term, he is then obligated to accept the call-off amount defined in the blanket order as well as any possibly existing reserve stock that VOLPI AG may have, at the agreed unit price. If fixed call-off dates and call-off quantities are agreed against the call-off order, and if the entire lot size was not called off by a call-off date, the customer is obligated to accept the remaining units until the lot size has been met at the agreed unit price. We reserve the right to make price adjustments based on currency fluctuations, amended customs rates and allocations.
- Technical documents – Technical documents such as sketches, drawings, descriptions, illustrations and such are to be considered only as approximations; we reserve the right to make any changes we deem necessary. We shall retain intellectual property ownership with respect to all technical documents. They may not be used for manufacturing or provided to third parties. On the other hand, the customer shall also retain intellectual property ownership with respect to documents provided to us by the customer, and they shall not be made available to third parties
- Terms of payment – If no other written agreement is reached, the following terms shall apply: 30 days net from date of invoice. For deliveries below an invoice amount of Fr. 100.-, for first deliveries to new customers or for deliveries to customers who from previous experience do not comply with our terms of payment, we reserve the right to deliver the goods on a COD/advance payment basis. The costs thereby incurred shall be borne by the customer. The payment dates must be complied with even if the transport or delivery is delayed or made impossible for reasons for which we are not responsible. The customer may not reduce or withhold payments on the basis of complaints, claims or counterclaims that we have not acknowledged. The payments must also be made if non-essential parts are missing and this does not make use of the delivery impossible. If the customer does not comply with the payment dates, he shall pay interest on arrears starting from the due date without the need for a special notice. The interest is based on the interest rate on current accounts customary with major Swiss banks plus 1.5%. Payment of interest on arrears does not rescind the obligation to make other payments under the agreement. If payments have been agreed for special equipment or systems after acceptance, an invoice will be issued for the agreed remaining amount after the date of acceptance. This amount shall be due in any case no later than after 30 days (see also Art. 19.).
- Packaging, shipment and insurance – In the absence of special agreements, packaging and shipping shall be performed in accordance with our best judgement. Delivery shall take place at the risk of the recipient. The customer shall immediately address complaints of damage or loss of the shipped goods directly to the shipping agency prior to acceptance.
- Period of delivery – If no special delivery date is requested, we deliver ex warehouse if possible. Furthermore, agreed and confirmed delivery dates apply subject to the occurrence of unforeseen obstacles. The period of delivery starts as of the date of our order confirmation. It ends when the respective shipment is ready for shipment. Compliance with the delivery dates is dependent on the customer placing the order having himself met any obligations such as notification of specifications, advance payments etc. in a timely manner. We shall always make an effort to meet the delivery dates we have indicated and have carefully calculated even if unforeseen circumstances occur. We cannot, however, grant a legal guarantee of such dates.
- Force majeure – For this contractual relationship, force majeure is also considered to be serious circumstances, occurring for no fault of our own, such as total or partial closure of supply factories, mobilisation, outbreak of war, rioting, fire, earthquake, import or export prohibitions or a substantial increase in import duties.
- Retention of title – We retain ownership of the delivery until we have received complete payment. The customer is obligated to assist us in steps taken to protect our property.
- Copyright protection, patent and trademark rights – We retain ownership of trademarks, drawings and projects. Without our express permission, it is not permitted to reproduce them, to use them or pass them on to third parties.
- Transfer of use and risk – Use and risk is transferred to the customer no later than upon dispatch of the delivery from our offices, including when the delivery is postage paid or when the shipping is organised and controlled by us. If the shipment is delayed or made impossible for reasons for which we are not responsible, the delivery will be placed in storage on the customer’s account and risk.
- Warranty – All warranty claims will only exist to the extent defined below. All claims over and above this, and in particular compensation claims for damage caused directly or indirectly by the goods or by use of them, will be expressly excluded. The Seller will give a warranty for all defects which occur during the guarantee period, if these can be proved to have been caused by poor material or faulty manufacture. The guarantee period will be twelve months, starting on the day when the goods are delivered to the Purchaser. The Purchaser must inspect the delivery item within 14 days (Switzerland) or 30 days (Export) following receipt and immediately provide written notification of any defects found, giving reasons for his claim. If he fails to do so, the delivery shall be considered to have been accepted. The claims of the Purchaser will lapse in any event if they are not enforced within the guarantee period of three months following delivery of the goods. The opening of conciliation proceedings will satisfy requirements in terms of meeting this deadline. The liability of the Seller will be limited to reparation or replacement of the defective delivery item or to reimbursement of the invoiced value of an item not replaced, at his own option. Under no circumstances will the Seller be liable for disassembly or re-assembly, for any associated travel or transport expenses or for any kinds of damage caused directly or indirectly by the delivery item itself or by use of it. Modifications or repair work performed without the written permission of the Seller or any failure to observe the operating instructions of the Seller will rescind the warranty, unless these are measures which the Purchaser is obliged to undertake as part of his duty to avert, minimize or mitigate loss. Recommendations in respect of application know-how given to the Purchaser in all conscience will be without obligation and will not constitute grounds for any contractual obligation. They will not discharge the Purchaser from inspecting the goods to ascertain their suitability for the purpose for which they are intended on his own responsibility.
- Liability – We must provide delivery in accordance with the agreement and meet our warranty obligation. Any further liability towards the customer or third parties for any damage is excluded.
- Place of performance and legal venue – The place of performance for deliveries and payment as well as legal venue for both parties is the registered office of VOLPI AG, Schlieren.
- Applicable law – The legal relationship is subject to Swiss law.
- The following alternate or additional provisions apply to special fibre-optic components and optoelectronic products and systems: Tool costs The customer acquires no rights to tools by sharing the cost of tools. We shall retain ownership of the tools.
- Delivery date – The delivery date shall be extended at our discretion if we have not been provided with important details needed for executing the order in a timely manner, if they are subsequently changed by the customer or if the contractual obligations or the terms of payment are not met. In the event of delays in delivery, the customer is not entitled to claim restitution of any kind for consequences of default that could be based on the delay of delivery. Any failure to meet thedelivery date also does not give the customer the right to withdraw from the transaction or to annul the order.
- For large systems or under a special agreement, we are prepared to conduct acceptance either at our site or at the customer’s site. The costs we incur thereby shall be charged according to effort expended. The result of acceptance shall be recorded in writing. Any payments still outstanding shall be due no later than 30 days after acceptance or arranged acceptance (see also under Art.6.).
- Specially fabricated products – We reserve the right to deliver up to 10% more or less than the ordered number of fibre-optic components for technical fabrication reasons. For orders that are not based on list or special offer prices, the customer expressly acknowledges the prices based on results.