The present terms and conditions of sale (“T&Cs”) apply to all sales by the Toly legal entity invoicing the customer, unless otherwise agreed in written agreements. In case of discrepancies between the present T&Cs and said agreements, these T&Cs shall prevail, unless explicitly agreed otherwise in writing.
Toly
Unless otherwise specified, the term “Toly” refers to the actual Toly legal entity invoicing the customer.
Offer and acceptance
The customer may ask for quotes and other information and subsequently place orders followed by Toly’s confirmation.
Regardless of the initial procedure followed, purchase orders shall bind the customer and the contractual relationship thus established shall be governed by these T&Cs, unless otherwise agreed in writing.
Notwithstanding the binding nature of purchase orders for the customer, Toly shall not be bound to execute such orders, unless Toly confirms them.
Orders shall remain valid and binding even without confirmation throughout their validity period or, if no period is indicated, for ten working days.
If specified in purchase orders or otherwise in writing, orders may be subject to the approval by the customer of pre-production samples (“PPS”).
Approved PPS and their specifications (cahier des charges, “CDC”) shall represent the benchmark of production.
Moulds used by Toly for manufacturing the products ordered by the customer shall never leave Toly’s premises unless otherwise agreed in writing.
Prices and payment terms
Total prices charged by Toly to the customer are indicated in individual offers sent by Toly.
Toly’s payment terms are 100% upfront, unless otherwise explicitly agreed in writing.
Changes and cancellations
Toly may at any time suggest changes in design and construction of the products to be sold to the customer as may be deemed an improvement by Toly itself.
Toly may obtain suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or unavailability of materials from suppliers, or changes in materials previously obtained from suppliers.
The customer may not cancel or modify the order or the specifications without Toly’s written consent, which shall not be withheld unreasonably. Even in such case, Toly will be entitled to the full contractual price, less any expenses saved because of the modification or cancellation and the customer shall also be responsible for any costs for which Toly becomes liable.
Delivery terms
Toly’s delivery terms are EXW Toly Incoterms 2010, unless otherwise explicitly agreed in writing.
Manufacturing tolerance
Delivery of 5% more or less than the quantity specified shall constitute fulfilment of the order by Toly and hence contractual performance and such difference shall be reflected in the invoice value, as the case may be.
Intellectual Property Rights
Only the customer shall be responsible for any patent, trademark and other intellectual proprietary rights (“IPRs”) related to custom products bought from Toly.
It is the customer’s responsibility to apply for registration and in general for protection of its IPRs
The customer hereby acknowledges that the products bought from Toly may contain either exclusive IPRs belonging to any Toly entity and/or third parties, whether registered or not, or co-developed IPRs shared between the customer itself and Toly. In either case, the customer shall refrain from infringing on Toly’s IPRs and shall always seek Toly’s guidance in IPR matters pertaining to the products sold by Toly, regardless of whether such products are the subject matter of any sale between the customer and any Toly entity or of whether any said sale has been rendered void for whatever reason, such as, although not limited to, breach of contract.
The customer hereby indemnifies any and all Toly entities against any and all losses, damages, costs and expenses (including without limitation legal fees) arising from or in connection with claims of infringement of Toly’s IPRs.
Confidential information
“Confidential Information” shall include, although it shall not be limited to, all information, know-how, technical data, samples, sketches, prototypes, formulæ, machinery, belonging to Toly, that the customer is shown and/or provided with even before establishing formal business relations with Toly.
Such Confidential Information shall remain vested with Toly at all times and, when gathered in whatever manner by the customer, it does not grant the customer any right, in particular, but without limitation, with regard to intellectual property rights.
Such Confidential Information is provided “as is” and Toly gives no warranty or guarantee on its validity and/or usability.
The customer shall not disclose any Confidential Information without previous written permission by Toly.
Compatibility tests
No Toly entity shall be responsible for conducting compatibility tests or for actual compatibility between the products ordered and formulæ they will be filled with.
Claims
In case the products delivered are defective or not conform for the maximum period set by the applicable law, the customer has the right to request remedies, within the time limits set by the law, provided that:
The customer has conducted an inspection at its own expense at the site of delivery within maximum twelve months from receipt of goods, that shows the defects or non-conformity;
Toly accepts in full the inspection and the claim raised.
Should Toly not accept in whole or in part the claim, it shall appoint an agreed third party sorting agent at its cost, to conduct another inspection, whose result shall be final.
Neither normal features in the moulded plastic nor normal wear and tear shall constitute a defect in material or workmanship.
Disclaimer of consequential damages
Toly’s liability with respect to the products sold shall be limited to the purchase price, unless otherwise ordered by a competent court of justice.
Toly shall not be subject to any other obligations or liabilities with respect to products sold or services rendered by Toly itself. Toly specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of the sold products or any associated equipment, cost of capital, cost of substitute products, facilities or services, down-time, shut-down or slow-down costs, or for any other types of economic loss, or for claims of the customer’s clients or any third party for any such damages.
Toly shall not be liable for and disclaims all consequential, incidental and contingent damages whatsoever.
The customer shall indemnify Toly against any and all losses, liabilities, damages and expenses (including, without limitation, legal fees and other costs of defending any action) which Toly may incur as a result of any claim by the customer or third parties arising out of or in connection with the products and/or services sold and based on defects not proven to have been caused solely by Toly.
Toly expressly limits its liability to providing the products according to the agreed specifications and such liability shall not extend to any subsequent process, such as filling, which could render the products unfit for purpose.
Storage and storage costs
Unless otherwise agreed upon in writing, if items bought by the customer are not shipped within 15 days after notification to the customer that they are ready for shipping, for any reason, including but not limited to the customer’s failure to give shipping instructions or to perform full payment, Toly may store such items at the customer’s risk in a warehouse or place of choice as determined by Toly or upon Toly’s own premises, and the customer shall pay all handling, transportation and storage costs, plus applicable interests.
Tooling addendum
All costs of tooling shall be borne by the customer, unless otherwise agreed in writing. Toly will provide the customer with an estimate of the approximate number of units each mould will produce and confirm any unit guarantees in writing. Routine maintenance of tooling will be Toly’s responsibility, if and only when tooling is in Toly’s possession, whilst in any case refurbishing, major overhauls, replacements and changes will be charged to the customer. Tooling shall be the property of Toly until paid in full by the customer.
Severability
In case any provision in these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting the validity, legality and enforceability of the remaining provisions; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Governing law and jurisdiction
The contractual relationship between the Parties shall be governed by the laws of the jurisdiction where the Toly legal entity invoicing the customer is registered.
Any dispute arising from between the Parties in connection with their contractual relationship shall be determined by one arbitrator who will be chosen in accordance with the Arbitration and Internal Rules of the European Court of Arbitration being part of the European Centre of Arbitration having its seat in Strasbourg, and which are in force at the time the application for arbitration is filed, and of which adoption of this clause constitutes acceptance. The seat of arbitration shall be that were the Toly legal entity invoicing the customer has its registered address. The language of the proceedings shall be English. Applicable rules of substantive law shall be those of the Toly legal entity invoicing the customer jurisdiction.
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