Terms and Conditions of Sale
1. Definitions
“Buyer” means the entity identified as the buyer or customer on Buyer’s purchase order, order acknowledgment, or confirmation with Impro.
“Impro” means Impro International Limited, a Hong Kong company, together with its affiliates and subsidiaries.
“Products” means any parts or other goods requested by Buyer to be manufactured or provided by Impro, or any services requested by Buyer to be provided by Impro.
2. Acceptance
Unless otherwise agreed to by Impro in writing, this Terms and Conditions of Sale (these “Terms”) apply to all sales of Products. By placing an order for Products, Buyer accepts and agrees to be bound to these Terms.
Impro rejects explicitly, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents, none of which shall be deemed by either party as a counter-offer, and all of which are deemed null and void for purposes of Buyer and Impro’s agreement. Impro’s failure to object to any term or condition in any communication to or from Buyer will not be construed as an agreement to such term or condition, nor will it be deemed a waiver of these Terms. Impro reserves the right, in its sole discretion, not to accept any purchase order, purchase order release, including any purchase order or purchase order release issued in connection with a Quotation (as defined below) provided by Impro. Without limiting the foregoing, Impro may unilaterally reject any purchase order for any reason, including a determination by Impro, in its sole discretion, that Buyer may not have the ability to perform its obligations under such purchase order or any other agreement between Impro and Buyer.
3. Quotations and Prices
The Quotation is an offer by Impro to a Buyer regarding the supply of Products subject to specified conditions. Quotation, together with these Terms, set forth the terms and conditions upon which Impro is agreeing to sell the Products to Buyer. Unless otherwise agreed in writing by Impro, the prices shown in the Quotation shall be in effect only during the validity period set forth in the Quotation. The price(s) on Buyer’s purchase order or applicable purchase order release shall reflect the prices in the Quotation and shall be subject to the price adjustment mechanism in the Quotation. Unless otherwise stated, the prices at which Impro will invoice Buyer for the products specified herein will be those in effect at the time of shipment. In the event of a conflict between the terms set forth in a purchase order (or a purchase order release), in a Quotation and these Terms set forth herein, the terms of Quotation and these Terms shall govern.
4. Right to Change Prices and Lead Times
Upon 60 days prior written notice to Buyer, Impro may, in its sole discretion, notify Buyer that it shall no longer be accepting new orders under any then applicable Quotation, whereupon such Quotation shall be deemed rescinded.
In the event that material adverse events occur in the supply chain, which is beyond Impro’s control and cause major delay or short of supply of materials, labor or services, Impro shall have the right to quote with new lead times in its discretion or decline to accept any new orders.
5. Shipment
Impro reserves the right to make delivery in installments, unless otherwise expressly stated herein. All such installments shall be separately invoiced and paid for when due without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
In case of delay in shipment because of Buyer, the products may be placed in storage by Impro and Buyer shall pay all handling, insurance and storage charges. Unless otherwise stated, Buyer shall pay all charges promptly upon receipt of invoice and shall pay for products placed in storage in accordance with the terms originally specified by Impro.
Impro shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of Buyer’s default or defaults, to withhold shipments, in whole or in part, to stop products in transit and redirect the same, either before or after delivery.
6. Cancellation
This order shall not be cancellable by the Buyer for delays in delivery or other cause until ten (10) days after written notice of such termination shall have actually been received by Impro, and Buyer shall be obligated to accept any products shipped or delivered by Impro during such period, as well as material and work-in process on custom orders. Unless otherwise expressly stated, this order can be canceled without fault on Buyer’s part only with Impro’s consent and upon terms that will indemnify Impro against loss.
7. Terms of Payment
Unless otherwise agreed in writing by Impro, Buyer shall make payment according to the payment terms set forth in the applicable Quotations. If Buyer fails to make a payment within 10 days after the date on which such payment is due, Buyer shall pay to Impro on demand interest on such delinquent amount from the due date thereof until paid at the rate of 1.5% per month, provided that if applicable law imposes a lesser late charge or interest rate for contracts of this type, the above amount will be reduced to the limit allowed by, and shall be paid in accordance with, such applicable law. Buyer shall also pay to Impro all reasonable costs and expenses (including but not limited to attorneys’ fees) incurred by Impro in connection with Impro’s efforts to collect such delinquent payment or payments. Impro reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay for any products when due or for any other reason deemed good and sufficient by Impro. In such event all subsequent shipments shall be paid for in advance or on delivery.
8. Nonconforming Products
Unless otherwise agreed by Impro in writing, Buyer shall inspect all Products immediately upon receipt, and if any of the Products are believed by Buyer, in Buyer’s reasonable opinion, to be nonconforming, Buyer must notify Impro, in writing, within ten (10) days of such receipt, the nature of any such nonconformity. Impro shall then have the right to verify the nature and cause of the alleged non-conformance and shall have the right and option, at its sole discretion, to either repair or replace any Products that Impro agrees are nonconforming. The failure of Buyer to notify Impro in writing that the Products are nonconforming within ten (10) Days of Impro’s delivery of the Products shall constitute full and complete acceptance of the Products in their entirety. No Products may be returned without Impro’s Return Material Authorization (“RMA”).
9. Warranty
Impro warrants that Products shall, as of the date on which such Products are delivered to Buyer, conform to the specifications and description agreed upon in writing by Buyer and Impro, and shall be free from material defects.
If Buyer reasonably believes a material defect regarding a Product exists, Buyer’s remedy and Impro’s liability shall be limited to the value of such defective Product. Should a recall is conducted by governmental agency, Impro’s liability shall be limited to the repair or the replacement of such defective Product at Impro’s sole option; provided, however, that Impro shall not be obligated to repair or replace such defective Product unless all of the following conditions have been satisfied: (i) Buyer determines a Product is defective on or before the second anniversary of the date on which the Product was delivered to Buyer, (ii) Buyer has provided Impro written notice of the defect no later than thirty (30) days after Buyer first discovers it, which notice must contain sufficient information to substantiate Buyer’s claim and, (iii) Buyer returns the defective Products to Impro, with an RMA, within thirty (30) days after the applicable RMA is issued by Impro. Delivery of any Product repaired or replaced in accordance with the terms of this Section shall be at Impro’s sole expense.
Notwithstanding the foregoing, Impro shall not be liable for any defect resulting from a Product having been exposed or subjected to: (i) any alteration, modification, maintenance, repair, installation, handling, transportation, storage, operation or use of a Product that is improper, unless solely caused by Impro, (ii) any accident, contamination, foreign object damage, abuse, neglect, or negligence pertaining to a Product after delivery to Buyer, unless solely caused by Impro, or (iii) any damage to a Product precipitated by any goods or services not supplied by Impro.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OR ANY OTHER WRITTEN AGREEMENT EXECUTED BY BUYER AND IMPRO IN CONNECTION HEREWITH, IMPRO IS NEITHER MAKING ANY REPRESENTATIONS NOR EXTENDING ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO BUYER WITH RESPECT TO THE PRODUCTS, AND IMPRO HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF THE TECHNICAL ADVICE GIVEN BY IT CONNECTION WITH THE PRODUCTS SOLD HEREUNDER, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING.
10. Patent & Intellectual Property Rights
For any product manufactured or sold by Impro to meet Buyer’s particular specifications or requirements, Buyer agrees to indemnify, protect and save harmless Impro against all suits or actions, and from all judgments, decrees, costs and expenses for actual or alleged infringement of any United States or foreign patent. Buyer agrees that, upon request of Impro, Buyer shall, at Buyer’s own expense, defend or assist in the defense of any such action which may be brought against Impro by reason of such alleged infringement.
Impro retains ownership of all intellectual property and proprietary data disclosed to Buyer in connection with the sale of the products. Buyer shall not disclose such intellectual property or data to others unless already known to the general public. For the purposes of this paragraph, proprietary data means all design, engineering and technical information (whether patentable or not) and other information relating to Impro’s trade secrets. Impro’s trade secrets include but are not limited to secrets of manufacture contained in Impro’s manufacturing methods and processes, treatments, chemical compositions, plant layout and tooling. Unless otherwise specifically stated herein, Impro further retains ownership of all rights, title and interest in and to any and all ideas, invention, improvements, materials, copyrightable materials or the like, conceived or made by Impro as a result of or relating to work performed in connection with the manufacture and sale of the products.
11. Force Majeure
Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, delays in transportation beyond the control of either party, or any other similar occurrence. Impro shall have the right, in the event of the happening of any of the above occurrence, at its option, to cancel order or contract or any part thereof without any resulting liability; however, Buyer’s payment for Products produced and shipped shall not be suspended by any event of force majeure.
12. Limitation of Liability
Notwithstanding any provision of these Terms or any other agreement between Buyer and Impro to the contrary, Impro shall not be liable for any consequential, special, indirect, incidental, exemplary or punitive damages of any kind or nature whatsoever, or for loss of revenue, income or profits, regardless of whether arising from breach of contract, tort or otherwise, and even if advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen.
13. Governing Law
For sales made in the United States: These Terms and all other agreements between Impro and Buyer shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles. The parties agree to submit themselves to the exclusive jurisdiction of the federal and state courts in Los Angeles County, California, for the enforcement, interpretation and construction of these Terms and such other agreements, and all other matters regarding or relating thereto.
For sales made in Asia other than China, These Terms and all other agreements between Impro and Buyer shall be governed by and construed in accordance with the laws of Hong Kong, without regard to its choice of law rules and without regard to conflicts of laws principles. The parties agree to submit themselves to the exclusive jurisdiction of the courts in Hong Kong for the enforcement, interpretation and construction of these Terms and such other agreements, and all other matters regarding or relating thereto.
For sales made in China: These Terms and all other agreements between Impro and Buyer shall be governed by and construed in accordance with the laws of People’s Republic of China, without regard to its choice of law rules and without regard to conflicts of laws principles. The parties agree to submit themselves to the exclusive jurisdiction of courts in Wuxi, Jiangsu for the enforcement, interpretation and construction of these Terms and such other agreements, and all other matters regarding or relating thereto.
For sales made in Europe: These Terms and all other agreements between Impro and Buyer shall be governed by and construed in accordance with the laws of Switzerland, without regard to its choice of law rules and without regard to conflicts of laws principles. All disputes, differences of opinion and claims arising out of or in connection with these Terms and all other agreements, including the validity, breach or termination thereof, and pre-contractual and non-contractual matters shall be settled by a sole arbitrator in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre. The place of arbitration shall be Zürich. Oral proceedings may be held anywhere in the world. The language in which arbitration proceedings are conducted shall be English.”
THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
14. Binding Agreement.
These Terms inure to the benefit of and are binding upon the parties, their respective successors in interest by way of merger, acquisition, or otherwise, and their permitted assigns.
15. Integration; Non-Reliance.
These Terms and the terms and conditions of any other written agreements between Buyer and Impro executed in connection herewith constitute the complete and entire agreement between the parties and supersede any prior written or oral agreements or understandings with respect to the subject matter hereof. Buyer acknowledges and agrees that it is acting without reliance on any representations or warranties made by Impro, except representations or warranties expressly set forth in these Terms and any other written agreements between Buyer and Impro executed in connection herewith.