Buyer means a person or an entity purchasing Products directly from GD.
Covered Claim has the meaning defined in Section 13.1.
Days means calendar days unless otherwise stated.
Estimated Ship Date or ESD means the date estimated by GD for shipment of the Product from the applicable GD location.
GDmeans Granite Devices Inc
Item has the meaning defined in Section 16.1.
Non-Standard Product means a Product designated by GD as “Non-Standard.” This designation includes Products customized for a single customer, or non-custom Products primarily purchased by a single customer.
Other Claim has the meaning defined in Section 13.3.
Payment means GD has received cleared funds from Buyer in GD’s bank account on or before the invoice due date.
Product means any product that GD has qualified and released to market. For clarity, and without limitation, the term “Product” or “Products” excludes: services, reference designs, marketing collateral, software, Samples, prototypes, experimental devices, and evaluation modules. GD may provide these items or services to Buyer under separate terms.
Safety-Critical Application means systems whose failure or malfunction may result in death or serious injury to persons, loss or severe damage to equipment, or harm to the environment.
Sample means a Product or pre-production item that GD provides to Buyer free of charge for evaluation or testing purposes.
Specification means measureable electrical and physical characteristics of a particular Product listed in the then-current official data sheet or wiki page (including errata) for that Product.
Standard Product means a Product designated by GD as “Standard.” This designation includes catalog Products offered and/or sold to many customers.
Trade Control Law(s) has the meaning defined in Section 16.1.
This contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, whether oral or written, with respect to goods and/or services (a "Product" or the "Products") provided by GD to Buyer as specified herein.
No addition to or modification or waiver of any provision of this contract will be binding upon GD unless made in writing and signed by a duly authorized GD representative. Electronic communications, including emails and/or social media communications, are not signed writings for the purposes of this Section 2.
No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this contract. These terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, purchase order, acknowledgements, and online communications.
Notwithstanding any other acts or omissions of the parties, Buyer's acceptance of a Product constitutes Buyer's assent to all of these terms.
Buyer may offer to buy Products under these terms by submitting an order to GD. GD may accept or reject any order at GD’s sole discretion.
The terms in this contract are the sole terms governing GD’s sale of Products to Buyer. GD’s acceptance of Buyer’s offer is expressly limited to these terms. GD hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless GD expressly agrees to such terms in writing.
GD communicates pricing to customers in various ways (e.g. directly in the web pages, and quotes) and confirms transaction prices with its order acknowledgements.
Prior to shipment, GD’s price may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions. The final price in effect on the date of shipment as stated in GD’s invoice applies.
Unless otherwise agreed, prices are in EUR and Payment must be in EUR.
Unless otherwise agreed to by the parties in writing, GD shall deliver the Products “Carriage Paid To” (CPT), as defined in Incoterms 2010. GD’s obligation to deliver the Products shall be fulfilled when it has delivered the same in good condition to a carrier of its choice for delivery to the destination specified by Buyer.
Risk of loss or damage to the Products or any part of the Products shall pass to Buyer upon such delivery by GD to the carrier of its choice. Any subsequent loss or damage will not relieve Buyer from its obligations.
Unless otherwise specified, Buyer shall pay or reimburse GD for all freight, insurance, loading, packaging and handling charges, taxes, duties, fees, and storage (the “Shipping Charges”). Payment by Buyer for the Shipping Charges shall be at GD’s then current rates as set forth in an invoice.
Buyer is the importer of record and is responsible for all import duties, taxes, and any other expenses incurred or licenses or clearances required.
Dates for delivery are estimates, not guarantees, and are determined from the date of GD’s receipt of a written purchase order. GD is not liable for any loss or damage incurred by Buyer as a result of late delivery. Buyer must accept and pay for the Products even if GD delivers late or if GD makes a partial delivery.
GD may deliver the Products in installments. Each installment will be treated as a separate shipment under these Terms and Conditions of Sale. However, if Buyer does not pay for an installment, GD may treat the non-payment as a breach of contract relating to the other installments.
Overtime and other expenses incurred to hasten delivery at Buyer’s request shall be added to the quoted prices and paid by Buyer. Shipments ready for delivery can be deferred beyond the date for delivery only with GD’s written consent.
Buyer hereby grants GD, for itself and as collateral agent on behalf of each of GD’s subsidiaries, a security interest in
(i) all present and future Product sold or delivered by GD to Buyer;
(ii) all present and future books and records, including, without limitation, books of account and ledgers, computer programs, computer software, and data relating to Buyer or to any personal property subject to a security interest granted herein; and
(iii) all proceeds, whether now owned and existing or hereafter acquired or arising, including, without limitation:
(A) all rents, issues, royalties, and profits of or from any of the foregoing,
(B) all personal property now or hereafter received by Buyer upon the sale, exchange, lease, transfer, or other disposition of any of the foregoing, and
(C) any amounts now or hereafter payable under any insurance policy by reason of any loss or damage to any of the foregoing or any proceeds thereof to secure the prompt and unconditional payment and performance by Buyer of all indebtedness, obligations, debts, and liabilities owed to GD.
Buyer agrees, upon request by GD, to execute promptly any documents and perform any other acts at Buyer’s sole expense that GD deems necessary or advisable to confirm, continue and/or perfect the security interests granted in this Section 6.
In addition to and not in limitation or derogation of the foregoing, Buyer hereby irrevocably authorizes GD to execute and file any one or more financing statements covering all personal property subject to the security interests granted in this Section 6.
If an order value is two thousand (2000) EUR or more, Buyer may not cancel or reschedule it within 30 days of the estimated delivery date without GD’s written consent.
Payment is due according to GD’s invoice. GD may change or withdraw credit amounts or payment terms at any time for any reason.
If Buyer fails to make Payment when due, GD may suspend or cancel performance under any agreements, including delay or cancellation of shipment on any open orders.
GD will not be liable for, and Buyer will hold GD harmless from, any costs or losses resulting from suspension or cancellation on account of Buyer’s failure to make Payment.
Buyer may not deduct any Payment amounts on account of unresolved disputes. GD may charge Buyer 0.667% per month on overdue accounts (8% per year) to the extent permitted by law.
Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. GD will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides GD with a duly executed sales tax exemption certificate.
If Buyer is required by law to withhold any amount of tax from its Payment to GD, Buyer will take all reasonable steps to minimize such withholding tax, provide GD with a receipt or certificate as evidence the tax has been paid, and reimburse GD for the amount of withholding so that GD receives Payment for the full value of the invoice.
Unless GD notifies Buyer otherwise, with regard to international shipments that transit through international waters or airspace, title transfers to Buyer immediately after Products leave the jurisdictional territory of GD’s point of shipment.
Unless GD notifies Buyer otherwise, with regard to domestic shipments and international shipments that do not transit through international waters or airspace, title transfers upon delivery to Buyer’s carrier or nominee at GD’s point of shipment.
GD will not be in breach of this contract and will 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 GD’s reasonable control, whether foreseeable or unforeseeable, 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 components, GD may, at its sole discretion, allocate Product production and deliveries.
Subject to Section 11 and Sections 11.2 through 11.4 below, GD warrants to Buyer that each Product conforms to GD’s published Specifications for such Product. This warranty lasts for twenty four (24) months after the date GD or a GD-authorized distributor delivers the Product.
Notwithstanding the foregoing, GD will not be liable for a nonconforming Product if:
(a) the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than GD, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than GD;
(b) the nonconformity resulted from Buyer’s design, specifications, or instructions for such Products or improper system design; or
(c) Buyer has not paid on time.
Testing and other quality control techniques are used to the extent GD deems necessary. GD does not necessarily test all parameters of each Product.
Products that are identified by GD at time of purchase as pre-production parts are not covered by any warranty and should be used only for prototype testing, not in commercial products.
Buyer’s claims against GD under this Section 11 are void if Buyer fails to notify GD of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
GD’s sole liability will be at its option to repair or replace Products that fail to conform to the warranty set forth above, or credit Buyer’s account for such Products. GD’s liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by GD and that are determined by GD not to conform to such warranty.
If GD elects to repair or replace such Products, GD will have a reasonable time to complete such actions. Repaired and replaced Products will be warranted for the remainder of the original warranty period.
EXCEPT AS SET FORTH ABOVE, PRODUCTS (AS DEFINED IN THIS CONTRACT) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” GD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
GD may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter GD’s warranties as set forth above and no additional obligations or liabilities arise from GD providing such services or items.
GD PROVIDES ALL SERVICES AND ITEMS TO BUYER (OTHER THAN “PRODUCTS” DEFINED IN THIS CONTRACT) “AS IS” AND “WITH ALL FAULTS.” GD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES AND ITEMS, INCLUDING, BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications. Industry best practices generally require that Buyer conduct qualification tests on actual applications taking into account possible environmental and other conditions that Buyer’s application may encounter.
Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that
(1) anticipate dangerous consequences of failures,
(2) monitor failures and their consequences, and
(3) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions.
Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.
Unless GD has explicitly designated an individual Product as meeting the requirements of a particular industry standard (e.g., ISO/TS 16949 and ISO 26262), GD is not responsible for any failure to meet such industry standard requirements.
Where GD specifically promotes Products as facilitating functional safety or as compliant with industry functional safety standards, such Products are intended to help enable customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Products in an application does not by itself establish any safety features in the application. Buyer must ensure compliance with safety-related requirements and standards applicable to its applications.
GD may expressly designate certain Products as completing a particular qualification (e.g., Q100, Military Grade, or Enhanced Product). Buyer agrees that it has the necessary expertise to select the Product with the appropriate qualification designation for its applications and that proper Product selection is at Buyer’s own risk. Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such selection.
Buyer may not use any Products in life-critical medical equipment unless authorized officers of the parties have executed a special contract specifically governing such use. Life-critical medical equipment is medical equipment where failure of such equipment would cause serious bodily injury or death.
Buyer may not use any Products in any application where failure of a Product or Products in such application would cause serious bodily injury or death, or otherwise threaten well-being, unless authorized officers of the parties have executed a special contract specifically governing such use. These include, but are not limited to, submarines, aviation devices, vehicles, and heavy tools and equipment.
Buyer will fully indemnify GD and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance with Section 12.
GD will defend at its expense or settle any third-party claim against Buyer or its Affiliates alleging that Products, Services, or Deliverables provided under this Agreement infringe intellectual property rights in the country where they were sold. GD will pay infringement claim defense costs, GD–negotiated settlement amounts, and damages finally awarded by a court. GD has no obligation for any claim of infringement arising from, and Buyer will indemnify GD against any third-party claim arising from:
(i) GD’s compliance with Buyer or third party designs, specifications, instructions, or technical information;
(ii) modifications made by any party other than GD;
(iii) Buyer’s non-compliance with applicable Documentation;
(iv) use of Products, Services or Deliverables for purposes not contemplated by this Agreement or applicable Documentation (including distribution to third parties);
(v) Buyer use or combination of Products, Services, or Deliverables with products, software, or services that are not provided by GD; or
(vi) a Product, Service, or Deliverable that is not at the most current release level if the most current release level is noninfringing.
Subject to Sections 11 and 12, GD 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 GD to Buyer directly infringe any EU patent, copyright, or trade secret (“Covered Claim”), and GD will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by GD as settlement or compromise of a Covered Claim.
GD has no obligation to defend or indemnify Buyer unless Buyer:
(a) promptly informs GD of the Covered Claim and furnishes GD a copy of the claim, suit, or proceeding,
(b) gives all evidence in Buyer’s possession, custody, or control to GD, and
(c) gives GD reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise.
Buyer agrees to make available to GD the benefit of any defense available to Buyer to any Covered Claim 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 Covered Claim.
Buyer will be entitled to participate in its defense at its own expense with counsel of its own choosing.
If GD is obligated to defend Buyer pursuant to this Section 13, GD may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) if Buyer is enjoined from using the Products, 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
(c) if neither (a) nor (b) is available to GD at a commercially reasonable expense, then GD may stop selling the Products to Buyer without being in breach of this contract.
If GD elects to provide either of the options set forth in clauses (a) and (b) above, GD’s obligation pursuant to Section 13.1 will be entirely fulfilled as to that Covered Claim, except for any damages, losses, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to GD taking such action.
If GD elects the option set forth in clause (c) above, GD’s indemnity obligation under this contract will be entirely fulfilled, regardless of any additional claims, and Buyer will return to GD any and all Products remaining in Buyer’s possession, custody, or control.
GD will have no liability or obligation under Sections 13.1 or 13.2:
(a) if Buyer has not purchased the Products subject to the Covered Claim within the thirty-six (36) months preceding the date Buyer informed GD of the Covered Claim,
(b) if Buyer has not fully and promptly paid in full for the Products subject to the Covered Claim,
(c) if the Covered Claim arose because Buyer or Buyer’s customer brought a claim, suit, or proceeding against a third party,
(d) for any costs, losses, or damages resulting from Buyer’s willful acts, or any settlement or compromise incurred or made by Buyer without GD’s prior written consent, and
(e) to the extent that a Covered Claim is based upon:
Buyer’s use of the Products in combination with any other Product, device, software, or equipment,
Buyer’s use of the Products in a process, including a manufacturing process,
Buyer’s modifications to the Products,
GD’s compliance with Buyer’s particular design, instructions, or specifications,
or GD’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 (a) through (e) above - are individually and collectively referred to herein as “Other Claims”).
Buyer will defend GD against any claim, suit, or proceeding brought against GD insofar as such claim, suit, or proceeding is based on Other Claims and Buyer will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against GD for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. GD will be entitled to participate in its defense at its own expense with counsel of its own choosing.
THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS 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.
IN NO EVENT WILL GD 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 PRODUCTS, REGARDLESS OF WHETHER GD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL, REWORK 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 WILL BE BROUGHT AGAINST GD MORE THAN TWELVE (12) MONTHS AFTER THE EVENT THAT GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED.
IN NO EVENT WILL GD’S AGGREGATE LIABILITY FROM ANY USE OF A PRODUCT PROVIDED HEREUNDER, INCLUDING FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT EXCEED THE TOTAL AMOUNT PAID TO GD FOR THE PARTICULAR PRODUCTS AT ISSUE DURING THE PRIOR TWELVE (12) MONTHS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
In the event of any default by Buyer, GD may decline to make further shipments. If GD elects to continue to make shipments, GD’s action will not be a waiver of any such default or affect GD’s legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.
Buyer understands that exports and re-exports of GD products and any related software, technical data, service, or technical assistance (individually, an “Item” and, collectively, the “Items”) are subject to local export control, economic sanctions, and customs laws, regulations, rules, and orders (individually, a “Trade Control Law”, and, collectively, “Trade Control Laws”).
Buyer agrees to comply, and will ensure that its subsidiaries comply, with all applicable Trade Control Laws, and to obtain all required local authorizations, permits, or licenses at its expense. Buyer will give notice of the need to comply with the Trade Control Laws to any person or entity which it has reason to believe is obtaining an Item from Buyer with the intention of exportation.
Buyer shall not use, export, re-export, import, or otherwise transfer or provide any Item, or any product incorporating the Item, in contravention of any Trade Control Law or any end-user certificate provided by Buyer, including
(a) to any destination embargoed or sanctioned by the EU, where that act would be in breach of the applicable embargo or sanction, or
(b) for a prohibited end-use (such as research on or development or fabrication of chemical, biological, or nuclear weapons, unmanned air vehicles or missiles; or nuclear explosive or fuel cycle activities or unsafeguarded nuclear activity).
Buyer shall only use the Items for non-military, peaceful purposes.
Requests by Buyer for GD to provide assistance or services in connection with the integration of Items into any military end-use item must be approved in advance by GD in writing. GD is not obligated to provide such assistance or services.
Any Item export classification made by GD shall be for GD’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such Item or whether an export authorization is required for the exportation of such Item.
Buyer agrees to provide to GD in a timely manner such information and assistance, including end user certificates, as may be requested by GD in connection with securing any required licenses and authorizations. Any delivery schedules delineated in GD’s offer and/or Buyer’s order are calculated from the date of receipt of any requested export license(s).
In addition to any other remedy it may have, GD may suspend and/or cancel the export, delivery, installation, and/or any maintenance or repair service of any Item and otherwise be excused from performing any obligations it may have under this contract, if
(a) GD has not received all export-related documentation requested by GD, including end-user certificates,
(b) GD has not received the governmental approvals that GD deems to be required,
(c) GD believes that such activity may violate any Trade Control Laws or GD’s own compliance policies, or
(d) Buyer violates any of its obligations and commitments hereunder or any Trade Control Law.
Buyer must notify GD before providing any technical data to GD that is controlled under any Trade Control Law.
GD will not be liable to Buyer for any loss or expense if Buyer fails to comply with any Trade Control Law or with the provisions set forth herein. Buyer will fully indemnify GD and its representatives against any damages, costs, losses, liabilities, and/or expenses (including attorneys’ fees and expenses) arising out of Buyer’s non-compliance with Section 16, including Buyer’s violation or alleged violation of any Trade Control Law. Section 16 will survive the expiration or termination of this contract.
These Terms and Conditions shall be governed by and construed in accordance with the Finnish Law. The Finnish Courts shall have the exclusive jurisdiction to settle any dispute, controversy or claim related to such a demand. The Pirkanmaa District Court placed in Tampere, shall be the court of first instance.
GD may, in its sole discretion, modify or change these terms and conditions at any time.