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Terms & Conditions
FST Corporation (“Seller”) in consideration for acceptance of Buyer’s purchase order for Seller’s products and services (collectively “Products”) as the same is referred to in the accepted purchase order of even date and in which these Terms and Conditions are incorporated therein and constitute a material part of the purchase order, Seller accepts Buyer’s order. These Terms and Conditions are also fully incorporated in any price list or schedule, quotation, acknowledgement or invoice from Seller relating to the Products and constitute the complete and exclusive statement of terms governing the sale of the Products. Buyer’s acceptance of the Products shall serve as Buyer’s agreement to the Terms and Conditions contained herein. These Terms and Conditions may only be modified by an instrument in writing and signed by Buyer and a duly authorized representative of Seller.
- Prices:
- Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Products shall remain in effect for days after the date of Seller's quotation or acknowledgment of Buyer's order for the Products, whichever occurs first, provided an unconditional authorization from Buyer for the shipment of the Products is received and accepted by Seller within such time period. Seller reserves the right to modify or cancel Seller’s quotation or modify a time of shipment or date of deliverable at any time during the fourteen (14) day period following Seller’s quotation or at any time before Buyer’s unconditional authorization for shipment of Products. If such authorization is not received by Seller within such 14 day period, Seller shall have the right to change the price of the Products to Seller's price for the Products at the time of shipment. All prices are exclusive of taxes, transportation and insurance, which shall be borne by Buyer, and valid based upon minimum quantities stated within Seller’s quotation. Seller reserves the right to revise price at any time due to documented cost increases.
- Quote Validity Period:
- Unless otherwise agreed upon in writing, Seller’s quotation is valid for a period of 14 days from the date noted on the quote.
- Taxes:
- Stated prices do not include any customs duties, sales, use, value added, excise, goods and services, federal, state, local or other similar taxes. All such duties or taxes shall be paid by Customer, or, in
lieu thereof, Customer shall provide Seller with an appropriate exemption certificate acceptable to the relevant taxing authority.
- Payment:
- Unless otherwise specified by Seller, terms are net 45 days from date of Seller's invoice in U.S. currency. Seller shall have the right, among all other remedies available to Seller under law, either to terminate this agreement or suspend further performance under this Agreement or at Seller’s election any other agreements with Buyer in the event Buyer fails to make any payment under this Agreement when due and Buyer hereby consents to any such election by Seller. Buyer shall be liable for all expenses, including costs and attorneys' fees, relating to the collection of past due amounts, such delinquent payment shall bear interest at the rate of eighteen percent (18%) per annum or an amount permitted by law, whichever is less, from the date on which the payment is due until it is paid. Any payment due to either party under this agreement shall be made in full without any set-off, restriction, condition deduction or withholding for or on account of any counterclaim. Should Buyer's financial responsibility become unsatisfactory as determined by Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries of the Products . If such cash payment or security is not provided, in addition to Seller's other rights and remedies, Seller shall have the right to discontinue deliveries. Title to all Products supplied by Seller to Buyer shall remain with Seller and shall not pass to Buyer until all sums due on the Products are fully paid to Seller.
- Shipment and Delivery:
- While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions and other required information. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Risk of loss and legal title to the Products shall transfer from Seller to Buyer upon delivery to and receipt by carrier at Seller's shipping point. Unless otherwise specified by Seller, all shipments are Ex Works (Incoterms 2021). Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery. Buyer shall inspect Products delivered to it by Seller immediately upon receipt, and, any course of dealing to the contrary notwithstanding, failure of Buyer to give Seller notice of any claim within 10 days after receipt of such Products shall be an unqualified acceptance of such Products
- Rescheduling and Expedite Fees:
- Seller reserves the right to charge Buyer for rescheduling units to ship earlier than the shipment date acknowledged or quoted lead times. All fees associated with expedited shipments (such as air freight) will be the responsibility of Buyer Orders that are within 12 weeks of shipment cannot be shipments beyond 12 weeks from Seller’s order acknowledgment date may be subjected to additional costs. Units rescheduled to as date beyond 12 months from the date of the purchase order will be treated as if they were on a separate purchase order for the purpose of recalculating quantity discounts and Buyer will be liable for the difference. Units that have no work-in-process and for which no proprietary or custom material has been purchased can usually be rescheduled without additional fees. For units where work has been and/or materials have been done and/or materials have been committed, a rescheduling fee shall be due equal to the cost of raw materials purchased and work-in-process for the units being rescheduled times 1.8% per month or fraction of each month past original ship date. Rescheduling fees are calculated at the time of rescheduling and due net 45 days from the date of rescheduling.
- Limited Warranty:
- EXCEPT AS SET FORTH EXPRESSLY IN THIS SECTION, SELLER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OTHER WARRANTIES THAT MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE. SELLER
WARRANTS ONLY THAT THE PRODUCT COMPLIES WITH SELLER'S SPECIFICATION SHEET FOR THE PRODUCT AT THE TIME OF DELIVERY, PROVIDED THAT DEVIATIONS FROM SPECIFICATIONS
WHICH DO NOT MATERIALLY AFFECT PERFORMANCE OF SUCH PRODUCT IN THE SYSTEM AND CONFIGURATION IN OR FOR WHICH IT IS INITIALLY INSTALLED OR QUALIFIED BY CUSTOMER
SHALL NOT BE DEEMED TO CONSTITUTE FAILURE TO COMPLY WITH SUCH SPECIFICATIONS.All warranties cover only defects arising under normal use in compliance with Seller’s specifications and do not include malfunctions or failures resulting from misuse, malicious attack, intentional
misconduct, hacking, row-hammer invasions abuse, neglect, alteration, modification, combination, failure by customer of qualification of product, or improper installation, or repairs by anyone other
than Seller. Further, warranties do not cover nonconformity resulting from a custom product, Customer’s design, specifications, or integration with Customer’s system. No agent, employee or
representative of Seller has any authority to bind Seller to any affirmation, representation or warranty relating to the products other than as specifically provided herein.
- No Warranty against Patent Infringement:
- CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT SELLER DOES NOT WARRANT THAT THE PRODUCT IS FREE OF CLAIMS OF PATENT INFRINGEMENT OR OTHER INFRINGEMENT BY ANY
THIRD PARTY. SELLER HEREBY DISCLAIMS ANY SUCH WARRANTY OR INDEMNIFICATION AGAINST ANY INFRINGEMENT.
- Excuse of Performance, Force Majeure:
- Seller shall not be liable for delays in performance or for non-performance due to any cause beyond its reasonable control including, but not limited to, acts of god; acts of buyer; war; fire; flood; weather; sabotage; epidemics; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders, invasions, insurrections of a larger extent, or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller's reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or cancelled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supply the total demand for the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Products or such material(without obligation to acquire other supplies of any such Products or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result herefrom.
- Termination:
- In the event of Buyer cancellation, for convenience or default, Buyer assumes all liability to Seller for payment of the (a) Products delivered, (b) finished good inventory, (c) work in process, and (d) raw materials on order at time of cancellation required per any and all purchase orders, stocking agreements, VMI, Min/Max requirements, blanket orders, material agreements, or releases.
- Non-Cancellation:
- Buyer may not cancel, terminate for convenience, or direct suspension of manufacture, except on mutually acceptable terms.
- Changes:
- Buyer may request changes or additions to the Products consistent with Seller's specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees and dates of delivery. Seller reserves the right to change designs and specifications for the Products without prior notice to Buyer, except with respect to Products made to order for Buyer. Seller shall have no obligation to install or make such change in any Products manufactured prior to the date of such change.
- Technical Design Change:
- Seller reserves the right to re-quote if the performance or dimensional criteria change prior to Buyer’s order place mentor during the period of fulfilling Buyer’s order.
- Drawings and Data:
- Timely performance by Seller is contingent upon Buyer’s supplying to Seller, when needed, all required technical information, including drawing approval, and all required commercial documentation. All drawings furnished by Seller to Buyer are proprietary and remain the exclusive property of Seller, and are to be used by Buyer only for the purpose of operating and maintaining the Product(s), and not for manufacture of duplicate or similar requirement or parts by others.
- Custom Tooling, Dies, Fixtures, and Production Equipment:
- All production equipment, including custom tooling, dies, and fixtures shall be Seller’s property which Seller be free to move, transfer, dispose of, or use in any manner or for any purpose whatsoever, including but not limited to production of products for other customers.
- Property or Equipment Furnished by Buyer:
- All tooling, jigs, dies, Fixtures, materials, and other property supplied or paid by Buyer will be maintained by Seller to meet the performance requirements to Buyer’s order. Seller will not be responsible for any loss or damage to property or other equipment furnished by Buyer for any reason, whether or not caused by the negligence of Seller, and Seller shall be free to move, transfer, dispose of, or use such property in any manner or for any purpose whatsoever without notice to Buyer. Seller shall not be required to identify such property or to account to Buyer in any way for such property at any time. Buyer agrees to indemnify and save Seller harmless from claims and expense(including expense of litigation) for bodily injury and property damage which may arise or result from the use of Buyer’s property, whether or not arising from joint or concurring negligence of other parties.
- Assignment:
- Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
- Buyer’s Purchase Orders:
- Orders received in response to Seller quotations are subject to acceptance by Seller. When accepted, Seller will furnish specified Products at quoted prices according to the schedule in Seller’s sales order acknowledgment. In the event of changes, Seller reserves the right to suspend manufacture and delivery of Products on Buyer’s order pending mutual acceptance of the revisions. Seller reserves the right to discontinue deliveries under Buyer’s order by reason of unfavorable changed in Buyer’s financial condition, credit status, or payment history.
- Intellectual Property:
- Seller's intellectual property, including without limitation, all patents, copyrights, trade secrets, trade-dress and any other intellectual property of any kind (including without limitation, that which exists in the underlying technology), furnished by Seller to Buyer in connection with this agreement is the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing, and sale. Possession of Products, pre-production units, specifications, prints or drawings, or any other materials does not convey to Buyer any rights or license thereto. If Seller, or any person employed by or working under the direction of Seller, conceives or first reduces to practice: (a) any invention whether by virtue of experimental, development or research activities, including engineering related thereto and whether or not patentable; (b) any reduction to practice of any subject matter, application or discovery which could be patented or copyrighted; or (c) any improvement in the design of the Products or any alternative or improved method of accomplishing production of the Products, referred to as “Inventions”, such Inventions shall be owned by Seller and deemed confidential and the propriety property of Seller.
- Buyer's Compliance with Laws:
- In connection with the transactions contemplated by this agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of the Republic of Korea and of any applicable state, foreign and local governmental body in connection with the purchase, license, receipt, use, transfer and disposal of the Products.
- Export/Import:
- Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the Republic of Korea and the jurisdictions in which the Seller and Buyer are established or from which Products may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Products in violation of such applicable laws, regulations, orders or requirements.
- Governing Law:
- This agreement is governed by the laws of the Republic of Korea. Customer acknowledges and agrees that the courts of Republic of Korea have jurisdiction over this agreement and Customer, that Republic of Korea is an appropriate place for venue of any litigation, and that all litigation, shall be in Republic of Korea. Customer consents and agrees that Republic of Korea shall be the sole forum for resolution of disputes regarding this Agreement or transactions hereunder.
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