Standard Terms and Conditions of Sale
1. Offer and Acceptance: Aimtec (“AIMTEC”) offers to sell and deliver power conversion products in accordance with the terms and conditions set forth herein. AIMTEC’s Sales Orders and Invoices are issued under the following Terms and Conditions of Sale and the Buyer’s acceptance and processing of AIMTEC’s Sales Orders and Invoices are deemed as their acceptance of these terms and conditions. Acceptance of this offer is expressly limited to such terms. Unless Aimtec expressly agrees in writing, it will not be bound by any additional or different terms proposed by Buyer, including those contained in Buyer's purchase order.
2. Prices and Releases: All prices quoted by AIMTEC are valid for 30 days. AIMTEC's price in effect at the time AIMTEC receives Buyer's purchase order shall continue to apply if the quantity ordered is released by AIMTEC within twelve (12) months and shipments are scheduled within twelve (12) months. Otherwise, AIMTEC's price in effect on the actual release date for the quantity actually shipped shall apply. If the price of fuels, metals, raw materials, equipment or other production costs increases significantly, AIMTEC shall have the right and Buyer shall have the obligation to renegotiate the price of all products not yet shipped, and if an agreement is not reached, AIMTEC shall have the right to terminate this contract without liability.
3. Title and Delivery: Shipments inside and outside Canada shall be delivered EXW Vaudreuil-Dorion, Canada or Taipei, Taiwan (Incoterms 2010). Title and liability for loss or damage shall pass to Buyer upon AIMTEC's delivery to Buyer's designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations. Buyer shall reimburse AIMTEC for insurance and transportation costs incurred on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. AIMTEC may deliver products in installments. Delivery dates are estimates. AIMTEC shall not be liable for any damage, losses or expenses incurred by Buyer if AIMTEC fails to meet the estimated delivery dates.
4. Payment Terms: If AIMTEC extends credit to Buyer, payment terms shall be net thirty (30) days after AIMTEC's invoice. AIMTEC may change or withdraw credit amounts or payment terms at any time for any reason. If the products are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. If Buyer fails to make any payment when due, AIMTEC may suspend or cancel performance under any agreements in which AIMTEC has extended credit to Buyer. AIMTEC's suspension of performance may result in rescheduling delays. If, in AIMTEC's judgment, Buyer's financial condition does not justify the payment terms specified herein, then AIMTEC may terminate this contract unless Buyer immediately pays for all products that have been delivered and pays in advance for all products to be delivered. Termination in accordance with this clause shall not affect AIMTEC's right to pursue any other available remedies.
5. Taxes: Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. AIMTEC will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides AIMTEC with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to AIMTEC, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
6. Contingencies: AIMTEC shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond AIMTEC's reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God. In the event of a shortage of products, AIMTEC may allocate, at its sole discretion, product production and deliveries.
7. Aimtec Limited Warranty and Related Remedies:
7.1. All AC/DC LED DRIVER PRODUCTS: This limited warranty may be transferred to subsequent purchasers of the Product, provided that such Product is resold in new condition and in its original packaging. Aimtec warrants that the Product, when delivered in new condition and in its original packaging, where the product is used within the specifications published in AIMTEC’s datasheet for such product, valid based on product operation at maximum case temperature of 75°C, nominal input voltage and at rated output load unless otherwise specified, will be free of defects in material and workmanship for a period of FIVE (5) YEARS from the date of original purchase. If Aimtec’s investigation concludes that the defective AC/DC LED Driver has to be repaired or replaced by a new one, the replacement module will carry the balance of the remaining warranty period.
For case temperatures higher than 75°C but less than what is specified in the product datasheet, Aimtec’s standard AC-DC converter warranty of TWO (2) YEARS remains in effect.
AC/DC LED Drivers damaged by lightning shock, or surge over the specified limits in the datasheet for the product, including conditions specified in clause 7.5 below, are not covered in Aimtec’s warranty program.
7.2. All AC/DC CONVERTER PRODUCTS: This limited warranty may be transferred to subsequent purchasers of the Product, provided that such Product is resold in new condition and in its original packaging. Aimtec warrants that the Product, when delivered in new condition and in its original packaging, where the product is used within the specifications published in AIMTEC’s datasheet for such product, valid based on product operation at datasheet specifications at ambient temperature of 25°C, humidity<75%, nominal input voltage and at rated output load unless otherwise specified, will be free of defects in material and workmanship for a period of THREE (3) YEARS from the date of original purchase.
7.3. All DC/DC CONVERTER PRODUCTS: This limited warranty may be transferred to subsequent purchasers of the Product, provided that such Product is resold in new condition and in its original packaging. Aimtec warrants that the Product, when delivered in new condition and in its original packaging, where the product is used within the specifications published in AIMTEC’s datasheet for such product, valid based on product operation at datasheet specifications at ambient temperature of 25°C, humidity<75%, nominal input voltage and at rated output load unless otherwise specified, will be free of defects in material and workmanship for a period of THREE (3) YEARS from the date of original purchase.
7.4. The determination of whether the Product is defective shall be made by Aimtec in its sole discretion with consideration given to the overall performance of the Product against documented specifications.
7.5. If Aimtec determines the Product is defective, Aimtec will elect, in its sole discretion, to refund you the purchase price of the Product, repair the Product or replace the Product. This limited warranty does not apply to loss or damage to the Product caused by: negligence; abuse; misuse; mishandling; improper installation, storage or maintenance; damage due to fire or acts of God; vandalism; civil disturbances; power surges; improper usage of power supply; electrical current fluctuations; corrosive environmental installations; induced vibration, alteration; accident; failure to follow installation, operating, maintenance or environmental instructions prescribed by Aimtec or applicable electrical codes; or improper service of the Product performed by someone other than Aimtec or its authorized service provider. Moreover, Aimtec shall not be liable for any defects that result from a client’s design, specifications or instructions for such products. This limited warranty excludes field labor, transportation, re-installation, and service charges related to the repair or replacement of the Product. THIS LIMITED WARRANTY IS VOID IF THE PRODUCT IS NOT USED FOR THE PURPOSE FOR WHICH IT IS DESIGNED.
7.6. Safety-Critical, Military and Automotive Applications:
7.7. Aimtec products are not authorized for use in safety-critical applications (such as life support) where a failure of the Aimtec product would reasonably be expected to cause severe personal injury or death. Buyer shall fully indemnify Aimtec and its representatives against any damages arising out of the unauthorized use of Aimtec products in such safety-critical applications.
7.8. Aimtec products are neither designed nor intended for use in military/aerospace applications or environments. Buyer acknowledges and agrees that any such use of Aimtec products is solely at the Buyer's risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
7.9. Aimtec products are neither designed nor intended for use in automotive applications or environments.
7.10.Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of Aimtec products in Buyer's applications, notwithstanding any applications-related information or support that may be provided by Aimtec.
7.11.Aimtec reserves the right to utilize new, reconditioned, refurbished, repaired or remanufactured products or parts in the warranty repair or replacement process. Such products and parts will be comparable in function and performance to an original product or part, as determined by Aimtec in its sole discretion, and warranted for the remainder of the original warranty period. Buyer agrees that prior to using or distributing any systems that include Aimtec products, Buyer will thoroughly test such systems and the functionality of such Aimtec products as used in such systems. Aimtec may provide technical, applications or design advice, quality characterization, reliability data or other services. Buyer agrees that providing these services shall not expand or otherwise alter Aimtec's warranties, as set forth above, and no additional obligations or liabilities shall arise from Aimtec providing such services.
7.12.In order to make a warranty claim, you must notify Aimtec in writing within fourteen (14) days after your discovery of the defect, provide proof of purchase such as the invoice and comply with Aimtec's other warranty requirements. Upon receiving that notice, Aimtec may require you to promptly return the Product to Aimtec, or its authorized distributor, freight prepaid. In no event Aimtec shall be liable for special, incidental or consequential damages due to actions or reasons beyond Aimtec’s warranty. In no event shall the accrued total liability of Aimtec exceed the aggregate sum paid by the Buyer under the order that gives rise to such claim, warranty or indemnity.
7.13.This limited warranty only applies to AC/DC LED Drivers, AC/DC converters, and DC/DC converters, and a copy of this warranty can be found at http://www.Aimtec.com/terms-sale
7.14.In no event shall aimtec be liable for incidental, compensatory, consequential, indirect, special or other damages. Aimtec's aggregate liability with respect to a defective product shall in any event be limited to the monies paid to aimtec for that defective product.
7.15.Notwithstanding anything to the contrary, application notes and development products are provided ‘as is’ and ‘with all fault’. Aimtec disclaims all warranties, express or implied regarding such application notes and development products, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
7.16.This warranty is effective for purchases of Product on or after the effective date set forth below. Aimtec reserves the right to modify this warranty from time to time. Any modification of this warranty shall be effective for all orders placed with Aimtec on or after the effective date of such revised warranty.
7.17. Effective Date: January 1, 2014
7.18.Counterfeit Products: Authentic Aimtec products are available exclusively from authorized Aimtec Distributors. Products purchased from an unauthorized distributor are not supported by the company’s warranty, which includes not benefiting from Aimtec technical support. If the failing product in question was not purchased from one of our franchised distributors, there’s a high degree of risk the failing product may not be an original AIMTEC one. In the event product returned for inspection turns out to be counterfeit, customers would be charged transportation costs and engineering inspection fees.
8. Intellectual Property Indemnification:
8.1. Subject to clauses 8.2, 8.3, 9.1 and 9.2, AIMTEC will pay any damages, liabilities or costs (excluding consequential and exemplary damages) finally awarded against Buyer, or agreed to by AIMTEC as settlement or compromise, and will defend Buyer against any claim, suit or proceeding brought against Buyer, insofar as such claim, suit or proceeding is based on an allegation that products manufactured and supplied by AIMTEC to Buyer directly infringe any Canadian patent, copyright, or trade secret; provided AIMTEC is (i) promptly informed and furnished a copy of such claim, suit, or proceeding, (ii) given all evidence in Buyer's possession, custody or control, (iii) given reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer hereby agrees to make available to AIMTEC the benefit of any defense available to Buyer to any infringement allegation hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such infringement allegation.
8.2. In the event of an allegation for which AIMTEC is obligated to defend Buyer pursuant to clause 8.1, AIMTEC may, but shall not be obligated to: (i) obtain a license that allows Buyer to continue the use of the products, (ii) replace or modify the products so as to be non-infringing, but in a manner that does not materially affect the functionality of the products, or (iii) if neither (i) nor (ii) is available to AIMTEC at a commercially reasonable expense, then AIMTEC may refund to Buyer the purchase price and the transportation costs of such products and prospectively cease to indemnify Buyer with regard to such products without being in breach of this contract. If AIMTEC elects to provide either of the options set forth in clauses (i) and (ii) above, AIMTEC's indemnity obligation pursuant to clause 8.1 shall be entirely fulfilled as to that individual claim, except for any damages, liabilities, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to AIMTEC taking such action. If AIMTEC elects the option set forth in clause (iii) above, AIMTEC's indemnity obligation under this contract shall be entirely fulfilled, regardless of any additional claims. Also, if AIMTEC elects the option set forth in clause (iii) above, Buyer shall return to AIMTEC any and all products remaining in Buyer's possession, custody or control.
8.3. AIMTEC shall have no liability for any costs, losses or damages resulting from Buyer's willful acts, or any settlement or compromise incurred or made by Buyer without AIMTEC's prior written consent. AIMTEC shall have no obligation to defend and no liability for any costs, losses or damages, to the extent that an infringement allegation is based upon: (i) Buyer's use of the products in combination with any other product, software or equipment; (ii) Buyer's use of the products in a manner or for an application other than for which they were designed or intended, regardless of whether AIMTEC was aware of or had been notified of such use; (iii) Buyer's use of the products in a manufacturing or other process; (iv) Buyer's modifications to the products; (v) AIMTEC's compliance with Buyer's particular design, instructions or specifications; or (vi) AIMTEC's compliance with any industry or proprietary standard or Buyer's use of the products to enable implementation of any industry or proprietary standard (such claims - i.e. those set forth in (i) through (vi) above - are individually and collectively referred to herein as "Other Claims").
8.4. Buyer shall indemnify and hold AIMTEC harmless against any damages, liabilities or costs finally awarded against AIMTEC or agreed to by Buyer as settlement or compromise, and will defend any claim, suit or proceeding brought against AIMTEC insofar as such claim, suit or proceeding is based on an allegation arising from Other Claims.
8.5. The foregoing states the sole liability of the parties for intellectual property rights infringement and is in lieu of all warranties, expressed or implied or statutory, in regard thereto. Buyer understand and agrees that the foregoing intellectual property indemnification terms are essential elements of this contract, and that in the absence of such terms, the material and economic terms of this contract would be substantially different.
9. Limitations and Damages Disclaimer:
9.1. General Limitations. In no event shall AIMTEC be liable for any special, collateral, indirect, punitive, incidental, consequential or exemplary damages in connection with or arising out of this contract or the use of the goods provided hereunder, regardless of whether AIMTEC has been advised of the possibility of such damages. Excluded damages include, but are not limited to, cost of removal or reinstallation, ancillary costs to the procurement of substitute goods or services, retesting, outside computer time, labor costs, loss of goodwill, loss of profits, loss of savings, loss of use, loss of data, or business interruption. No claim, suit or action shall be brought against AIMTEC more than one year after the related cause of action has occurred.
9.2. Specific Limitations. In no event shall AIMTEC's aggregated liability from any warranty, indemnity, or other obligation arising out of or in connection with this contract, or any AIMTEC product provided hereunder, exceed the total amount paid to AIMTEC for the particular units sold under this contract with respect to which losses or damages are claimed. The existence of more than one claim against the particular units sold to buyer under this contract shall not enlarge or extend this limit.
9.3. Buyer understands and agrees that the foregoing liability limitations are essential elements of this contact and that in the absence of such limitations the material and economic terms of this contract would be substantially different.
10. Cancellations and Rescheduling: Upon issuing its order confirmation, AIMTEC provides the Buyer with five (5) days to cancel, modify or reschedule its order. No cancellation or rescheduling of product by Buyer beyond five (5) days of AIMTEC's sales order confirmation date for such product to Buyer will be accepted. Any cancellation or rescheduling request by Buyer must be made in writing within the five (day) window. AIMTEC reserves the right to, at its sole discretion, accept any other cancellation or rescheduling requests made after such five (5) day period. Cancellation requests made within the five (5) day window may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by AIMTEC based on factors such as whether the product was ordered specifically for Buyer (“custom made product”), AIMTEC's ability to change its production schedule within the period of notice provided by Buyer, whether AIMTEC acquired or allocated particular supplies or equipment to meet Buyer's order and such other factors as reasonably determined by AIMTEC.
11. Non-waiver of Default: In the event of any default by Buyer, AIMTEC may decline to make further shipments. If AIMTEC elects to continue to make shipments, AIMTEC's action shall not constitute a waiver of any such default or affect AIMTEC's legal remedies for any such default.
12. Governing Law: This contract shall be governed by and interpreted in accordance with the laws of the Province of Quebec, Canada, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the Province of Quebec and consents to venue in Montreal, Quebec. Notwithstanding the foregoing, any judgment may be enforced in any Province of Canada or foreign court, and AIMTEC may seek injunctive relief in any Canadian or foreign court.
13. Export Control:
13.1.Buyer agrees that unless prior authorization is obtained from a government agency with export authority over the items purchased or ordered by Buyer from Aimtec, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology or product (as defined in Part 734 of the Export Administration Regulations of the U.S. Department of Commerce ("EAR")), received from AIMTEC, to any destination or country to which the export, re-export or release of the technology or direct product is prohibited by the EAR and/or the laws of Canada. Buyer furnishes the assurances provided herein to AIMTEC in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.
13.2.Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product or technical data acquired from AIMTEC under this contract. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product and/or technical data directly or indirectly to any person, firm, entity, country or countries prohibited by Canada or applicable non-Canada laws. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product and/or technical data from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals cannot be obtained, AIMTEC may terminate, cancel or otherwise be excused from performing any obligations it may have under this contract.
13.3.Any product export classification made by AIMTEC shall be for AIMTEC's internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This Section 13 shall survive termination of this contract.
14. Canadian & U.S. Government Contracts: If the products are to be used in a Canadian or U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
15. Assignment: This contract shall not be assignable by Buyer without AIMTEC's prior written consent. Any unauthorized assignment shall be null and void.
Entire Agreement: This contract constitutes the entire agreement between the parties relating to the sale of the products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the products made by any AIMTEC representative, which are not stated herein, shall be binding on AIMTEC. No addition to or modification of any provision of this contract shall be binding upon AIMTEC unless made in writing and signed by a duly authorized AIMTEC representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and conditions, which shall remain in full force and effect. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.