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Terms & Conditions

Orbel’s latest terms and conditions relating to design and engineering, prototyping, manufacturing, project management, and delivery listed below.

Supplier Flow Down Requirements listed here.

1. INTRODUCTION

1.1 ‘Orbel’ means Orbel Corporation registered as a Corporation in the State of Pennsylvania, USA.

1.2 ‘Contract’ means the contract for sale of Orbel products.

1.3 ‘Conditions’ means the Orbel Terms and Conditions of Sale.

1.4 ‘Delivery Point’ means the Purchaser specified location on the purchase order and which has been accepted by Orbel on the order confirmation. When no Delivery Point is specified then the default is FOB Easton, PA.

1.5 ‘Intellectual Property Rights’ means all vested and future rights of copyright and related rights, design rights, patents, utility models, rights to inventions and trademarks. Rights in know-how, rights in confidential information, and any other intellectual or industrial property rights are equivalent forms of protection, whether now known or in the future subsisting in any part of the world.

1.6 ‘Order’ means purchase order submitted by the purchaser and accepted by Orbel in accordance with Clause 2.2 subject to these conditions.

1.7 ‘Order Confirmation’ means confirmation sent by Orbel to the purchaser agreeing to fulfill the purchase order subject to the Orbel conditions. 

1.8 ‘Sales Order’ means the number applied to an order by Orbel in receipt of a purchase order.

1.9 ‘Price’ means the price quoted by Orbel in its original quote unless otherwise varied in writing in any Contract/Order.

1.10 ‘Specification’ means the manufacturers specification for the products or such other specification as the parties may agree in writing pursuant to any Order/Contract formed in accordance with these Conditions.

1.11 ‘the Purchaser’ means the natural person or legal entity to whom Orbel agreed to sell products.

1.12 ‘Purchase Order’ means any purchase order issued by the Purchaser.

1.13 ‘Product(s)’ means the goods specified in the Purchase Order and/or Order Confirmation.

1.14 The headings in these Conditions are for ease of reference only and shall not affect its construction or interpretation.

2. GENERAL

2.1 Any quotation made by Orbel and any Contract/Order shall be governed only by these Conditions to the entire exclusion of all other terms or conditions including, without limitation, any purchaser terms contained in or referred to in a purchase order. A purchase order constitutes an offer to purchase the products subjects to these conditions and the Order Confirmation shall be treated as acceptance of the purchase order on these Conditions. These Conditions shall apply to all future arrangements between the parties for Orbel to supply products and the purchaser to buy products.

2.2 Unless otherwise stated in writing, quotations are in effect 30 days from their date of offer. Purchase orders based on quotations shall not be binding on Orbel until Orbel accepts such Purchase Orders and notifies the purchaser in writing of such acceptance by Order Confirmation. Orbel will only accept a purchase order when an Order Confirmation is issued. In the case that Products are delivered prior to Order Confirmation or no Order Confirmation is received the Products shall be delivered strictly in accordance with these Conditions which shall form the Contract between the parties.

2.3 Times quoted for delivery or completion shall run from the date of such Order Confirmation unless agreed otherwise in writing.

2.4 Orbel may, at its discretion, impose an appropriate and proportionate surcharge to cover handling costs, in respect of purchase orders placed which are below a minimum value. Also Orbel shall have the rights to impose a reasonable surcharge for expedited delivery (defined as a delivery requirement at variance with Orbel’s normal shipping arrangements) to reflect the additional logistic and transport costs incurred in meeting the Purchaser’s requirements.

2.5 In the event that Orbel, for any reason, accepts the cancellation of all or part of a Purchase Order, the Purchaser shall be liable for payment in full of all costs and lost expected revenue incurred by Orbel up to the point of cancellation or, at Orbel’s option the full Price for the Products. A reasonable standard to be used.

2.6 In the event that Orbel, for any reason, accepts a production hold of all or part of a Purchase Order, at Orbel’s discretion the Purchaser shall be liable for payment in full of all costs and lost expected revenue incurred by Orbel up to the point of production hold. A reasonable standard to be used.

3. VARIATIONS

3.1 Any variation to these Conditions shall have no effect unless expressly agreed in writing by an officer of Orbel Corporation.

3.2 If any variation, suspension or any instruction of the purchaser in respect to a Contract/Order increases or reduces the cost or time to Orbel of performing the Contract/Order, then the price shall be adjusted accordingly. The time delivery shall automatically be adjusted in accordance with any variation.

4. PRICES

4.1 All prices quoted to the Purchaser are at an Orbel facility, and do NOT include any applicable foreign, federal, state or local sales, use excise or other taxes, freight, insurance or surcharge, unless otherwise specifically indicated, all of which shall be the sole liability of the Purchaser. Orbel shall charge applicable duty, value added tax or goods and services taxes, together with any and all such other taxes and charges as shall be applicable to Purchaser’s order. Prices are quoted in the currency showen in the quote. If the Purchaser is required under any Applicable Law to withhold or deduct any amount from the payments due to Orbel the Purchaser will increase the sum it pays to Orbel by an amount necessary to leave Orbel with an amount equal to the sum it would have received had no such withholdings or deductions have been made. Should any import licenses or other consents be required for the Products the Purchaser shall, at its own cost, make those licenses and consents available to Orbel prior to the relevant shipment.

4.2 Prices are based upon delivery of the entire quantity at completion of manufacture or upon partial shipments as manufactured or upon a delivery schedule accepted by Orbel. Prices on shipments scheduled for installment deliveries or for delivery more than six months after date of order are subject to review and adjustment.

5. SHIPMENT AND DELIVERY

Shipment dates are approximate dates based on Orbel’s best estimates. Orbel will attempt to timely ship the quantity ordered but reserves the right to over or under ship in accordance with normal commercial practices (typically 10%). Without prejudice to any other rights or remedies Orbel may have under these Conditions and in particular clauses 11 (Transfer of Title and Risk) and 9 (Limitation of Liability), Orbel shall not be liable for any damages or losses, of any kind or nature, which may be caused by any delay in shipment or delivery, including, but not limited to delay caused by strikes, floods, fires, accidents, inability to obtain sufficient materials or products from Orbel’s suppliers, insufficient labor, transportation or equipment. Each delivery, at the option of Orbel, shall constitute a separate sale with the same effect. Risk of loss, injury or destruction will pass to the purchaser at the time of delivery to the carrier for shipment. In the absence of specific instructions otherwise, Orbel will select a carrier the cost of which it will invoice to the Purchaser.

6. PAYMENT

Payments shall be made to Orbel at the address shown on the invoice within thirty (30) days from the date of invoice unless other payment terms are agreed in writing by the parties. Time for payment is of the essence. All payments shall be made in the currency invoiced by Orbel. If any amount due and payable to Orbel under the Contract is overdue or the Purchaser fails to make any payment then Orbel may, without prejudice to any other right or remedy it may have, and at its own option, either suspend deliveries or terminate the Contract, and/or charge the Purchaser legal interest on amounts overdue. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount whether before or after any judgement. The Purchaser shall pay the interest together with any overdue amount.

7. WARRANTY

7.1 Unless otherwise specified in any Order/Contract formed pursuant to these Conditions, Orbel warrants that the Products supplied shall, under proper use, be free from defects in design, material and workmanship and conform to the Specification in the Contract for a period of 6 months from shipment. ‘Proper use’ means storage, installation, commissioning operation and maintenance in accordance with good industry practice. All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose other than those expressly set out in these Conditions are excluded to the fullest extent permissible by law. No additional warranty shall be implied by these Conditions or any Contract/Order formed pursuant to it in respect of post warranty repair or rework (whether the original or replaced Products), unless expressly agreed in writing as a variation.

7.2 Orbel’s obligation under this warranty shall be limited to making good by rework or replacement at Orbel’s option any defect in the Product which appears before the expiration of the period of 6 months after shipment. Where Orbel opts to rework the Products the Purchaser shall return the Products to be reworked to Orbel’s premises at its own cost. In respect of items which have been reworked or replaced by Orbel hereunder, Orbel shall guarantee such items up to the end of the original warranty period. Returned items that are not reworked at Orbel’s option or any items that is subsequently replaced shall become the property of Orbel. Orbel’s obligation under this warranty is subject to: (i) Orbel being given formal notice in writing by the Purchaser of the defect within 14 days of the date of delivery, or when the defect was not apparent on reasonable inspection, within a reasonable time after the discovery of the defect; and (ii) Orbel being given a reasonable opportunity after receiving notice of the defect to examine the Products. Orbel’s decision as to whether the Products comply with the Specification shall be final. Orbel shall have no liability for the costs of dismantling, transportation, re-assembly, and re-testing of any of the Products affected under this warranty which shall be borne by the Purchaser, provided that the Purchaser shall be provided with a replace or reworked Product in accordance with these Conditions if a defect is found in accordance with Clause 7 of these Conditions.

7.3 Orbel’s obligation shall not extend to failure caused by wear and tear, misuse, neglect, willful damage or reworks or modifications to the Products which have been made without Orbel’s approval or result from; designs and specifications provided by the Purchaser, instructions given by the Purchaser without Orbel’s written consent or failure to act/observe any reasonable instructions in relation to the Products.

7.4 The Purchaser acknowledges that this warranty represents a proportionate and full remedy in terms of defects of the Products. The Purchaser hereby waives his legal rights in respect of the defects of the Products to the extent permitted save where expressively covered by this warranty.

7.5 Each party represents and warrants that it has the power and authority to enter into these Conditions and or Contract/Order formed pursuant to it and that the performance of its obligations under the Contract/Order shall comply with all Applicable Laws including, without limitation, the anti-bribery laws in the relevant jurisdiction.

8. CLAIMS FOR DAMAGES/DEFECTIVE PRODUCTS/LIMITATION OF LIABILITY

In the event that the purchaser alleges that it has received defective or damaged products in accordance with the warranty to Clause 7 of these Conditions, the Purchaser must inform Orbel in writing including the part number of the Products, a description of the characteristics which are not satisfactory, the serial number related to the batch, along with any further unique reference numbers that may appear on the packaging of the Products. Orbel will issue a unique return material authorization number, which allows the Purchaser to return the defective goods. Orbel shall not be liable to replace any Products rejected only on the grounds of immaterial imperfections or variations in the manufacturing process.

9. LIMITATION OF LIABILITY

9.1 Orbel’s total liability in contract, tort (including negligence), misrepresentation or otherwise in relation to these Conditions and Contract/Order formed pursuant to it shall be limited to the price of the products to which the claim relates.

9.2 In no circumstances shall Orbel be liable to the Purchaser for:

9.2.1 any indirect, special or consequential loss or damage; or

9.2.2 loss of data or other equipment or property; or

9.2.3 economic loss, costs, damages or charges; or

9.2.4 incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or

9.2.5 any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill; or

9.2.6 any losses arising from the Purchaser’s subsequent use or misuse of the Products including (without limitation) – fair wear and tear; willful damage; the Purchaser’s negligence or that of its agents or employees, or any failure to follow Orbel’s instructions as to the use of the Products; or

9.2.7 abnormal working conditions beyond the Specification; or

9.2.8 any alteration or rework of the Products by any manufacturing process or otherwise.

9.3 Orbel does not seek to exclude any loss which cannot be excluded or limited.

10. MODIFICATION OR ADDITION OF TERMS & CONDITIONS

No modification of, addition to, or waiver of any of the Conditions stated herein shall be binding upon Orbel, except by express written consent of an authorized officer of Orbel, which refers to the provisions hereof.

11. TRANSFER OF TITLE AND RISK

11.1 Legal title to the beneficial ownership in any consignment of the Products shall pass to the Purchaser upon receipt by Orbel of all sums due from the Purchaser in respect of the Products. All risks of loss or damage to the Products shall pass to the Purchaser on delivery and/or shipment and the Purchaser shall maintain the Products in satisfactory condition and keep them adequately insured on Orbel’s behalf for their full price and on request provide evidence of such insurance.

11.2 Until the passing of title in the Products to the Purchaser, the Purchaser shall hold the Products for Orbel and clearly identify them as belonging to Orbel. If the Purchaser is in default of payment of is otherwise in breach of the Contract/Order, Orbel may at any time until the passing of title in the Products to the Purchaser terminate the Contract and require the return of the Products delivered under such Contract.

11.3 The Purchaser shall maintain accurate records to ensure the continued traceability of any of the Products purchased from Orbel under these Conditions and shall provide reasonable assistance to Orbel in the event that any of the Products it has purchased are affected by a product recall or corrective action procedure implemented by Orbel.

12. INTELLECTUAL PROPERTY

The Purchaser acknowledges that all Intellectual Property Rights in and related to the Products are property of Orbel, including (without limitation) patents, copyrights, trademarks, design rights and know-how. Nothing in these Conditions or any Contract/Order formed pursuant to it shall be construed as conferring any license or granting any rights in favor of the Purchaser in relation to the Intellectual Property Rights. Orbel asserts its full rights to control the use of its trademarks worldwide and the Purchaser shall assist Orbel as required in preventing importers from diluting Orbel’s rights. Any reputation in trademarks affixed or applied to the Products shall accrue for the sole benefit of Orbel.

13. TOOLING AND SPECIAL GAGES

13.1 All tooling shall be and remain the property of Orbel, unless expressly paid for by the Purchaser. Costs for all special gages and tooling are the responsibility of the Purchaser.

13.2 Orbel reserves the right to permanently retain and control all tooling which incorporates Orbel’s developed part features produced within the tooling, whether or not written licensing agreements are in place.

13.3 If the purchaser wishes to withdraw their special dies from the plant for reason of their own, the die will be surrendered upon payment of a Tooling Engineering Charge sufficient to compensate for the design and development cost not included in the original price, and not less than 25% of the original cost plus inflation.

14. CONFIDENTIALITY

14.1 ‘Confidential information’ means the disclosing party’s information in any form whether oral, documentary, magnetic, electronic, graphic or in digital format; relating to the disclosing party’s business and including information relating to patents, trademarks, registered/unregistered rights, design rights, copyright formulations, engineering drawings, specifications, data, know-how, inventions, models, sample components, manufacturing methods, analytical and quality control methods, sales data, anticipated sales volumes, information relating to potential or actual customers, business structure, assets, liabilities, operations, budgets and strategies.

14.2 The receiving party will not divulge or communicate to any person without prior written consent of the disclosing party any Confidential Information and shall not use the Confidential Information for any purpose other than the manufacture and purchase of the Products under these Conditions and any Order/Contract formed pursuant to it.

14.3 The obligation of confidentiality will continue to apply at all times during the continuance of any Contract/Order incorporating these Conditions and for a period of 5 years after the expiration or termination of the Contract/Order but will cease to apply to information which is at the date of the disclosure public knowledge through no fault of the receiving party or is disclosed subject to a legal or regulatory requirement.

14.4 Each disclosing party shall have the right, immediately upon expiration or earlier termination of the Contract (for any reason whatsoever), to request the other receiving party to return all Confidential Information in its possession.

15. FORCE MEJEURE

15.1 If performance of any obligation under the Conditions or any Contract/Order formed pursuant to it is prevented, restricted or delayed by any act of God (i.e. act of extraordinary unpredictable and unsurpassable obstacle originated independently of the will of the parties) including, without limitation, act or omission of government, war, hostilities, acts of terrorism, fire, explosion, catastrophe, or in the case of Orbel, industrial dispute, failure or delay in source of supply of materials or equipment, accident or breakdown of essential machinery or equipment or by any cause (whether similar or not to any of the above events), beyond the reasonable control of the party whose performance is affected, then that party shall be excused from and shall not be liable for failure in performance to the extent of that prevention, restriction or delay and the time for performance shall be extended accordingly provided always that the affected party has taken reasonable steps to avoid the event and/or to mitigate the effects of the event so far as reasonably practicable.

15.2 If performance is delayed for more than 3 months by any cause referred to above and the parties have not agreed upon a revised basis for continued performance at the end of the delay, then either party may after that period, and while the cause of the non-performance still exists, terminate the Contract/Order by not less than 30 days in writing to the other party.

16. TERMINATION AND SUSPENSION

16.1 A party may immediately terminate a Contract/Order under these Conditions by giving written notice to the other party, if the other party; (i) commits a material breach of these Conditions which is not capable of remedy; (ii) commits a continuing breach of these Conditions and fails to remedy it within 15 days (or such other period as mutually agreed) of a written notice requiring the breach to be remedied; (iii) is dissolved, becomes insolvent, fails or is unable to or admits in writing its inability to pay its debts, institutes or has instituted against it, proceedings seeking a judgment of insolvency or bankruptcy, has a resolution passed for its winding up or liquidation, seeks or becomes the subject of the appointment of an administrator, receiver or similar official in respect of its assets; or (iv) ceases or threatens to cease to carry on business.

16.2 Orbel may at its option suspend performance of the Contract/Order: (i) until the events giving rise to the exercise of its rights of termination under clause 16.1 (ii) are remedied; or (iii) if the Purchaser has failed to make payment when due or to perform on time any of its other obligations under the Contract/Order or these Conditions. Orbel shall be entitled to : (i) exercise its rights of termination or suspension at any time during which the event of default giving rise thereto shall not have ceased or have been remedied, and for the avoidance of doubt if Orbel has elected to suspend its performance it may at any time during the period of suspension decide to terminate the Contract; or (ii) the time for Orbel’s completion shall be extended to such an extent as is reasonable to take account of such suspension; and (iii) any cost incurred by Orbel as a result of or in connection with such suspension shall be reimbursed to Orbel by the Purchaser.

16.3 Termination or expiration of this Contract shall be without prejudice to: (i) any party’s obligation contained herein which survive the termination or expiration of this Contract; and (ii) any prior rights which either party has accrued prior to the termination or expiration of this Contract/Order.

17. MISCELLANEOUS

17.1 The Purchaser shall not, without the prior written consent of Orbel assign, transfer, subcontract, or deal in any other manner with any of its rights and obligations under these Conditions, Contract and/or Order.

17.2 Orbel may perform its obligations and excise the rights granted under these Conditions through any Affiliated company or carry out its obligations through any agents or sub-contractors appointed by it in its absolute discretion for that purpose, and any act or omission of any such entity will for the purposes of these Conditions be the act or omission of Orbel.

17.3 The rights and remedies provided under these Conditions and any Contract/Order formed pursuant to it are in addition to not exclusive of, any rights or remedies provided by law unless expressively stated otherwise in these Conditions.

17.4 If any provision of these Conditions or a Contract/Order formed pursuant to it is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, or invalid, void, voidable, putative (futile), ineffective or unenforceable it shall, to the extent of such illegality, invalidity, voidness, voidability, putativeness (futility), ineffectiveness or unenforceability, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

17.5 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

17.6 Any waiver by a party of any breach of, or any default under any provision of the Contract shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

17.7 These Conditions and any Contract/Order formed pursuant to it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions.

17.8 Nothing in these Conditions or any Contract/Order formed pursuant to it is intended to or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party or authorize any party to make or enter into any commitments for or on behalf of any other party.

17.9 This Contract shall be governed by and construed in accordance with US and Pennsylvania Law without regard to its conflict of laws’ provisions. For all disputes arising our of or in connection with a Contract or the Conditions the parties submit to the jurisdiction of the courts in Northampton County Pennsylvania, USA.

17.10 The United Nations ‘Vienna Convention on Contracts for the International Sale of Products’ shall not apply to these Conditions and/or the Contract.

17.11 The parties agree that no condition of, or benefit conferred by, this Contract will be enforceable by any third party.

Orbel Corporation January 1, 2018

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