Terms and Conditions - Purchase

1. Definition
   “Agreement” means the agreement between Supplier and Buyer for the purchase and sale of Goods and/or Services.
   “Buyer” means Toly.
   “Deliverable” means any deliverable or other product or result from Services that is referred to in a Purchase Order, and any related materials, data, documentation, and includes any Intellectual Property Rights developed by Supplier pursuant to such Purchase Order.
   “Delivery Date” means the date of delivery for Goods or performance of Services as specified in a Purchase Order.
   “Delivery Point” means the location identified by Buyer in the Purchase Order to which the Supplier is to deliver Goods and/or perform the services, or such other delivery area or point which is specified in writing by Buyer.
   “Goods” means the goods that are required to be delivered by Supplier pursuant to a Purchase Order, and include all materials, component parts, packaging and labelling of such goods.
   “Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
   “Purchase Order” means the purchase order between Buyer and Supplier for the purchase and sale of Goods and/or Services, to which these Standard Purchase Terms are attached or are incorporated by reference.
   “Services” means any services to be provided by Supplier to Buyer pursuant to a Purchase Order.
   “Specifications” means the requirements, attributes and specifications for the Goods or Services that are set out in the applicable Purchase Order. Specifications also include: (a) documentation published by Supplier relating to the Goods or Services; (b) operational and technical features and functionality of the Goods or Services; (c) standards or levels of service performance for Services; and (d) Buyer business requirements that are expressly set out in a Purchase Order.
   “Supplier” means the party indicated on the face page of the Purchase Order that is contracting with Buyer for the purchase and sale of Goods and/or Services.
   “Supplier Proposal” means any acknowledgement, estimate, quote, offer to sell, invoice, or proposal of Supplier relating to the supply of Goods and/or Services to Buyer, including any delivered in connection with a request for quotations, request for proposal or similar process initiated by Buyer.
   “Warranty Period” means in respect of any Goods or Services, the longer of: (i) the express written warranty period provided by Supplier for the Goods or Services; and (ii) the period commencing on the date of Acceptance of such Goods or Services and ending on the date that is one (1) year from that date.
2. These Terms and Conditions
   1. The present terms and conditions of purchase (“T&Cs”) apply to all purchases by the Toly legal entity buying goods and services from the seller, unless otherwise agreed in ad hoc 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. In case of no written agreement, the present T&Cs shall apply.
3. Toly
   1. Unless otherwise specified, the term “Toly” refers to the actual Toly legal entity buying goods and services from the seller.
4. Offer and acceptance
   1. Unless specifically agreed, the present T&Cs are applicable to all purchase orders placed by Toly. Execution of a purchase order constitutes acceptance by the seller of each and all of the terms and conditions provided herein regardless of whether the seller signs the present T&Cs. These T&Cs constitute the entire agreement between Toly and the seller, unless otherwise agreed in writing by the parties.
5. The Agreement consists only of:
   (a) these Conditions of Purchase (T&C); (b) the applicable Purchase Order; and (c) any Specifications or other documents expressly referenced in the Purchase Order. Any reference in the Purchase Order to any Supplier Proposal is solely for the purpose of incorporating the descriptions and specifications of the Goods and/or Services contained in the Proposal, and only to the extent that the terms of the Supplier Proposal do not conflict with the descriptions and Specifications set out in the Purchase Order. Buyer’s acceptance of, or payment for, Goods and/or Services will not constitute Buyer’s acceptance of any additional or different terms in any Supplier Proposal, unless otherwise accepted in writing by Buyer. If there is any conflict or inconsistency between the documents constituting the Agreement, then unless otherwise expressly provided, the documents will rank in the order of precedence in accordance with the order in which they are listed in this Section 5.
6. Quality and conformity
   
   1. The seller shall provide the goods or the services in accordance with order placed by Toly in terms of quantity, quality, and delivery times. The goods or services shall also comply with the laws of the jurisdiction in which they are performed or imported by the seller. Toly’s involvement in inspections, tests and checks shall not release the seller from the performance of its own quality controls or from its obligation to provide compliant goods or se Visible non-compliance may be established following delivery of the goods or completion of the services within a maximum period of twelve months, even if the invoices have already been paid. The guarantee against hidden defects shall be subject to the applicable laws. Toly may ask the seller to make defective goods or services compliant, replace them or else cancel the order. In the latter case, the seller shall refund all the amounts paid in a timely manner. The defective goods shall be made available to the seller, which shall be in charge of promptly collecting them at its own expense; otherwise, Toly may dispose of them at the seller’s expense. The costs of disposal shall be borne by the seller, unless the parties agree otherwise.
   2. Packaging of the goods shall be under the seller’s responsibility and at its own It must allow for transportation, handling and storage under optimum conditions and be adapted to meet any usage requirements agreed with Toly.
   3. Ownership of the goods shall be transferred upon the delivery thereof. Unless expressly agreed by the parties in writing, Toly does not accept any retention of title clause. Unless otherwise specified by the Incoterm indicated by Toly or agreed by the parties in writing, risks in the goods shall be transferred only following delivery.
   4. Incoming inspection: On receipt, all goods will be subjected to an incoming quality inspection by Toly’s quality department personnel.  The Seller will be immediately informed  if the goods are  found not to comply with the specifications and descriptions given in the Purchase Order.  Based on the severity of  the nonconformity  Toly may decide to use the goods, use the goods but receive a reduction of the price equal to their loss in value, or have them replaced or repaired,  or discard completely and be fully refunded. Goods will be destroyed or sent back to the Seller as per Seller’s instructions at its own cost.
7. Hazardous Materials. Supplier agrees to provide, upon and as requested by Buyer, to satisfy any applicable laws governing the use of any hazardous substances either of the following: (a) all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including quantity used of each substance, of any Goods, and/or of any process used to make, assemble, use, maintain or repair any Goods; or (b) all reasonably necessary documentation to verify that any Goods and/or any process used to make, assemble, use, maintain or repair any Goods, do not contain, and the Services do not require the use of, any particular hazardous substances specified by Buyer.
8. Warranties
   1. The seller remains liable for non-conformities or defects in its goods. The acceptance of samples or the payment of invoices by Toly shall not vary this liability in any way.
      Any non-conformity with the specifications of the purchased goods shall entail a claim as per clause 4.a.
   2. Service Warranties. Supplier shall perform all Services: (i) exercising that degree of professionalism, skill, diligence, care, prudence, judgment, and integrity which would reasonably be expected from a skilled and experienced service provided providing services under the same or similar circumstances as the Services under this Agreement; (ii) in accordance with all Specifications and all Buyer policies, guidelines, by-laws and codes of conduct applicable to Supplier; and (iii) using only personnel with the skills, training, expertise, and qualifications necessary to carry out the Services. Buyer may object to any of the Supplier’s personnel engaged in the performance of Services who, in the reasonable opinion of Buyer, are lacking in appropriate skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent or negligent, and the Supplier shall promptly remove such personnel from the performance of any Services upon receipt of such notice, and shall not re-employ the removed person in connection with the Services without the prior written consent of Buyer.
   3. Intellectual Property Warranty. Supplier further warrants to Buyer that at all times all Goods and or Services (including any Deliverables) will not be in violation of or infringe any Intellectual Property Rights of any person.
   4. Manufacturer Warranties. Supplier shall assign to Buyer all manufacturer’s warranties for Goods not manufactured by or for Supplier and shall take all necessary steps as required by such third-party manufacturers to effect assignment of such warranties to Buyer.
9. Suppliers and Service providers will be subject to Toly’s Supplier’s Assessment Questionnaire.
10. Delivery terms
    
    1. Time is of the essence. The timeframes for delivering goods or performing services sold by the seller to Toly are mandatory and essential. Therefore, sales of goods or services shall only be considered fully executed once they are finalised, i.e. complete and compliant, including commissioning, where needed. The deadlines indicated by Toly shall refer to items delivered to the destination (delivery address by Toly) or services completed. They may not be shortened or extended without the express, prior agreement of the parties. Supplier must immediately notify Buyer if Supplier is likely to be unable to meet a Delivery Date. At any time prior to the Delivery Date, Buyer may, upon notice to Supplier, cancel or change a Purchase Order, or any portion thereof, including, without limitation, due to failure of Supplier to comply with this Agreement. In case the Supplier is performing its obligations until the cancellation or change of the Purchase Order by the Buyer prior to the Delivery Date, such cancellation or change shall be motivated in writing and may give rise to the Supplier’s rights to remedies, such as compensation for the portion of work related to the Purchase Order already proved to be performed.
    2. In case of late deliveries, the purchase price, if not already paid by Toly shall be reduced by an amount equal to that of the interests applicable to late payments of an equal sum. In case the purchase price has already been paid in full by Toly, Supplier shall indemnify Toly according to the above-mentioned formula.
11. Prices and payment terms
    
    1. Prices are indicated in a determined currency, without the possibility of index-linking to another currency and shall be considered firm and non-revisable.
    2. Unless otherwise agreed upon in writing, prices shall include packaging, delivery, insurance and duties.
    3. If not otherwise agreed in writing between both parties, standard payment terms are set at 90 days credit.
12. Liability
    
    1. Each party shall be liable for any direct damage that it may cause to the other, except in the case of a Force Majeure event.
13. Indemnification
    1. The seller shall hold Toly harmless from and against any liability, judgment, damages, loss or expense whatsoever, including, without limitation, reasonable legal fees, arising out of third-party claims for bodily injury and/or property damage arising out of the acts or omissions of the seller, its employees, agents and/or subcontractors.
14. Intellectual Property Rights
    
    1. Only the seller shall be responsible for any patent, trademark and other intellectual proprietary rights (“IPRs”) related goods or services sold Toly.
    2. It is the seller’s responsibility to apply for registration and in general for protection of its IPRs.
    3. The seller hereby acknowledges that the goods and services sold to 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 seller itself and Toly. In either case, the seller shall refrain from infringing on Toly’s IPRs and shall always seek Toly’s guidance in IPR matters pertaining to the goods or services sold to and/or by Toly, regardless of whether such goods or services are the subject matter of any sale between the seller 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.
    4. The seller hereby indemnifies 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.
15. Confidential information
    
    1. “Confidential Information” shall include, although it shall not be limited to, all information, know-how, technical data, samples, sketches, prototypes, formulae, machinery, belonging to Toly, that the seller is shown and/or provided with even before establishing formal business relations with Toly.
    2. Such Confidential Information shall always remain vested with Toly and, when gathered in whatever manner by the seller, it does not grant the seller itself any right, in particular, but without limitation, with regard to intellectual property rights.
    3. Such Confidential Information is provided “as is” and Toly gives no warranty or guarantee on its validity and/or usability.
    4. The seller shall not disclose any Confidential Information without previous written permission by Toly.
16. FORCE MAJEURE 
    Neither Party shall be deemed to be in default of any provision of these T&Cs, or any Statement of Work, nor be liable for any delay, failure in performance or interruption of services, resulting from acts of God, embargoes, quarantines, epidemics, pandemics and related restrictions, civil or military authorities’ acts, civil disturbance, insurrection, war, other catastrophes or any such other cause beyond its reasonable control; provided, however, that each Party shall exercise reasonable efforts to remedy or mitigate any delay or impediment to performance to the best of its ability. The Party claiming a force majeure event shall notify the other Party of such event within five (5) calendar days of its commencement. Such notice shall describe the force majeure event, its estimated duration, its estimated impact on the notifying Party's ability to perform under the Agreement or Purchase Order, and the measures the notifying Party proposes to adopt to resolve or to mitigate the adverse consequences arising from the force majeure event. Whenever a force majeure event occurs, the timing for performance under the Agreement or Order shall be extended for a period equivalent to the duration of the force majeure event, except that if the force majeure event persists for more than sixty (60) days or it is or becomes apparent that the force majeure will persist more than sixty (60) days, the Party not affected by such event shall be entitled to terminate the Agreement or Purchase Order by notifying the other Party. Additionally, Buyer shall be entitled to terminate the Agreement or Purchase Order within less than sixty (60) days after the commencement of a force majeure event if it becomes apparent, within Buyer’s sole reasonable judgment, that the Agreement or Purchase Order will fail of its original purpose and the value of the Goods or Services to Buyer will be materially reduced as a consequence of a force majeure event that cannot be remediated or resolved promptly.
17. Severability
    
    1. 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.
18. Governing law and jurisdiction
    1. The contractual relationship between the Parties shall be governed by the laws of the jurisdiction where the Toly legal entity paying the seller is registered.
    2. 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 paying the seller 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 paying the seller.