CAPLINQ General Terms and Conditions

1. Scope of Application

These General Terms and Conditions (hereinafter referred to as the “Terms”) shall apply to CAPLINQ Europe B.V., CAPLINQ Americas, Inc., CAPLINQ Corporation, and CAPLINQ Malaysia Sdn Bhd (collectively referred to as “CAPLINQ”). Unless otherwise agreed in writing by the Parties, these Terms govern all sales of goods (the “Goods”) between CAPLINQ (the “Seller”) and the Buyer (collectively, the “Parties”).

2. Acceptance of Orders; Governing Terms

  • 2.1. Seller's acceptance of the Buyer's order for the purchase of Goods is expressly conditioned upon the Buyer's assent to these Terms. Buyer shall be deemed to have assented to the provisions hereof in all respects upon the occurrence of any of the following:
    • (i) Buyer’s acceptance of any Goods shipped; or
    • (ii) Buyer’s failure to provide Seller with written notice of objection within ten (10) days from receipt of Seller's Order Confirmation (as defined in Section 2.4).
  • 2.2. Seller's commencement, performance, and/or delivery is for Buyer's convenience only and shall not be construed as acceptance of Buyer's terms and conditions. If a written contract signed by both Parties exists governing the sale of the Goods, the terms of such contract shall prevail in the event of any inconsistency with these Terms.
  • 2.3. The accompanying invoice, order acknowledgment, and/or any other document provided by Seller to Buyer, together with these Terms (each, an "Order Confirmation" and collectively, this "Agreement"), comprise the entire agreement between the parties. This Agreement supersedes all prior or contemporaneous understandings, negotiations, representations, warranties, and communications, whether written or oral.
  • 2.4. However, if Seller and Buyer are parties to a separate written agreement signed by both parties, such agreement shall prevail to the extent of any conflict with this Agreement, unless otherwise specified therein.
  • 2.5. These Terms take precedence over any of Buyer's general terms and conditions of purchase, regardless of when or how Buyer submits its purchase order or terms.
  • 2.6. Fulfillment of Buyer's order does not constitute acceptance of Buyer's terms and conditions, nor does it modify or amend these Terms.
  • 2.7. The Seller's recorded weights of the shipped Goods shall be deemed final and binding, unless the Buyer proves and verifies otherwise within ten (10) days of delivery. If no such proof is provided, the shipped Goods shall be deemed accepted by the Buyer in accordance with Sections 3.9 and 5.

3. Delivery

  • 3.1. The Goods shall be delivered within a reasonable time after receipt of the Buyer's purchase order, as outlined in the Seller’s Distribution Order Flow & Order Planning and subject to availability, or in accordance with the Incoterms specified in the quotation provided to the Buyer, whichever is applicable.
  • 3.2. Any specified delivery dates in a sales order confirmation or otherwise are estimates only and do not constitute a confirmed delivery date for any Good or order.
  • 3.3. The Buyer shall accept delivery of the Goods upon receiving written notice from the Seller that the Goods have been delivered to the Delivery Point.
  • 3.4. The Buyer shall be responsible for all unloading costs and shall provide the equipment and labor reasonably necessary to receive the Goods at the Delivery Point.
  • 3.5. The Seller shall have no liability whatsoever for delay in delivery. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.
  • 3.6. Each shipment shall constitute a separate sale, and the Buyer shall pay for the units shipped, whether the shipment fulfills the Buyer's purchase order in whole or in part.
  • 3.7. If, for any reason, the Buyer fails to accept delivery of any Goods on the date specified in the Seller's notice that the Goods have been delivered to the Delivery Point, or if the Seller is unable to deliver the Goods at the Delivery Point on such date due to the Buyer's failure to provide necessary instructions, documents, licenses, or authorizations: (i) risk of loss for the Goods shall pass to the Buyer; (ii) the Goods shall be deemed delivered; and (iii) the Seller may, at its option, store the Goods until the Buyer collects them, with the Buyer being liable for all related costs and expenses, including, but not limited to, storage and insurance.
  • 3.8. Each of the Seller's Goods, or any part thereof, or equipment shipped under these Terms shall be deemed accepted by the Buyer unless the Seller receives written notice specifying all claimed defects, damages, shortages, or nonconformities within ten (10) days of the delivery of said Goods.

4. Price and Payment Terms

  • 4.1. All prices are stated in the local currency of the applicable CAPLINQ entity and are subject to any applicable taxes, unless otherwise agreed upon in writing by the Seller.
  • 4.2. For single or non-recurring orders, prices and terms of payment are subject to change without notice. If the prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller based on such increased prices.
  • 4.3. For contractual recurring orders, the price of the Goods may be adjusted only in the following circumstances: In the event of a deviation in the Seller's agreed procurement price due to market-driven factors (e.g., including changes in the USD to EUR exchange rate and logistics costs) that are outside the Seller's control and result in a price change of more than +15% to -10%, the Parties shall, upon written request by either Party, negotiate in good faith whether and to what extent an adjustment to the Goods' price is feasible and appropriate under the given circumstances.
  • 4.4. With respect to any shipment, the price in effect at the time of shipment shall apply to the Goods.
  • 4.5. The default production batch volume, including any applicable tolerance, shall be as specified in the quotation provided to Buyer. In the event that the final production yield deviates from the original order quantity, the Buyer shall be required to issue a revised purchase order to reflect the adjusted quantity, consistent with the terms outlined in the quotation.
  • 4.6. Seller may recover for each delivery as a separate transaction, without reference to any other delivery.
  • 4.7. Payment shall be due no later than thirty (30) days, strictly net, from the date of the invoice created on the day of the order dispatch, unless otherwise agreed in writing by Seller.
  • 4.8. Buyer shall reimburse the Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In the event that invoices remain unpaid beyond the stipulated payment terms, the Seller reserves the right to impose an interest rate of 2% per month or 24% per annum upon the Buyer.
  • 4.9. In addition to all other remedies available under this Agreement, at law, or in equity (which the Seller does not waive by the exercise of any rights hereunder), the Seller shall be entitled to suspend the delivery of any Goods if the Buyer fails to pay any amounts when due hereunder or otherwise breaches this Agreement.

5. Warranty

  • 5.1. Seller warrants that the Goods shall conform to Buyer’s published specifications for their applicable shelf life or as agreed upon in writing by the Parties.
  • 5.2. Seller's recommendations or instructions regarding the use of any Good, whether used alone or in combination with other products, are based on information believed to be reliable. However, Seller makes no warranty or guarantee of results and assumes no obligations or liability with respect thereto. Seller assumes no responsibility for any assembly into which a Good is incorporated as a component or part. Buyer shall be responsible for designing and conducting all testing to determine whether any Good is suitable for its intended application. Any recommendations or instructions from Seller are not intended to suggest operations that would infringe, or not infringe, any patents belonging to third parties. Seller assumes no liability or responsibility for infringement of such patents. Seller may, without liability to Buyer of any kind, decline to continue deliveries of any Good, the manufacture, sale, or use of which, in Seller's opinion, would infringe any such patent, now or hereafter issued.
  • 5.3. Seller shall not be liable for a breach of the warranty set forth in Section 5.5 unless:
    • a. Buyer gives written notice of the nonconformance, including reasonable details, to Seller within ten (10) days from the time Buyer discovers or should have discovered the nonconformance;
    • b. Seller is given a reasonable opportunity after receiving the notice to examine such Goods, and Buyer, upon Seller’s request, returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and
    • c. Seller reasonably verifies Buyer's claim that the Goods do not conform to the specifications.
  • 5.4. Seller shall not be liable for a breach of warranty set forth in Section 5.5 if Buyer:
    • a. Continues to use such Goods after giving such notice;
    • b. The nonconformance arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or
    • c. Alters or repairs such Goods without Seller's prior written consent.
  • 5.5. Subject to Section 5.3 and Section 5.4 above, within sixty (60) days after delivery, in its sole discretion, either: (i) repair or replace such Goods (or the nonconforming part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller. For auxiliary items, the warranty is limited to the manufacturer's warranty.

    Except for the limited warranty set forth in this Section 5.5, Seller makes no warranty whatsoever with respect to the Goods, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
  • 5.6. The remedies set forth in Section 5.5 shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for any breach of the limited warranty.

6. Limitation of Seller’s Liability

  • 6.1. In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue, or profit; loss of data; diminution in value; or any consequential, indirect, incidental, special, exemplary, or punitive damages, whether arising out of or related to a breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not the seller has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
  • 6.2. In no event shall Seller's aggregate liability arising out of or related to this agreement, whether arising out of or related to a breach of contract, tort (including negligence), or otherwise, exceed the total of the amounts paid to Seller for the nonconforming goods.
  • 6.3. Failure to make a claim within thirty (30) days from receipt of the goods shall be deemed to constitute satisfactory performance by Seller and a waiver of all claims by Buyer

7. Liability for Unloading, Handling, and Use of Goods

  • 7.1. Buyer shall assume full responsibility and liability for:
    • a. The unloading, discharge, storage, handling, and use of any Goods or Goods containers, whether alone or in combination with other substances.
    • b. Compliance or non-compliance with any applicable laws or regulations related to the above.
    • c. Damage to or destruction of returnable containers from any cause whatsoever after delivery to the buyer and until their return to the seller in good condition.
  • 7.2. If applicable, carboys, steel drums, and other returnable containers shall remain the property of Seller, who shall reserve full recapture rights.
  • 7.3. If a deposit is paid for a returnable container, the Buyer shall receive credit for the deposit amount upon the return of the container to Seller (f.o.b. Seller's shipping point).

8. Force Majeure

  • 8.1. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, including but not limited to acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots, civil unrest, national emergencies, revolutions, insurrections, epidemics, lockouts, strikes, or other labor disputes (whether or not related to either party's workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials (including but not limited to raw materials on terms acceptable to Seller), shortages of materials or equipment, or telecommunications breakdowns or power outages.
  • 8.2. If any such contingencies occur, Seller may, without any liability to Buyer, retain its available supply of any Good for its own use or distribute it among its customers in a manner deemed fair and practicable by Seller. At the option of either party, the total quantity to be delivered shall be reduced by the quantity not delivered due to such causes.

9. Confidentiality

  • 9.1. All non-public, confidential, or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by the Seller to the Buyer, whether disclosed orally, in writing, electronically, or through other forms or media, and whether or not marked, designated, or otherwise identified as "confidential," shall be deemed confidential. Such information is to be used solely for the purpose of performing this Agreement and may not be disclosed or copied without the Seller's prior written authorization.
  • 9.2. Upon the Seller's request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Section.
  • 9.3. This Section shall not apply to information that:
    • a. is in the public domain;
    • b. was known to the Buyer at the time of disclosure; or
    • c. is rightfully obtained by the Buyer on a non-confidential basis from a third party.

10. Notice.

Any notice shall be deemed sufficiently given when duly mailed, addressed to the Seller or the Buyer at their respective addresses appearing herein, or to such other address as either party may designate by written notice.

11. Assignability.

This Agreement shall bind the respective successors and assigns of the parties hereto, but none of the Buyer's rights or obligations hereunder shall be assigned without the Seller's prior written consent.

12. Waiver.

No waiver by Seller of any provisions in this Agreement shall be effective unless explicitly set forth in writing and signed by the Seller. The failure or delay by Seller to exercise any right, remedy, power, or privilege arising from this Agreement shall not operate or be construed as a waiver thereof. Furthermore, the single or partial exercise of any such right, remedy, power, or privilege does not preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13. Compliance with Labor, Safety, and Environmental Standards.

Seller certifies that the production of the Goods complies with all applicable labor, safety, and environmental laws, including but not limited to the Fair Labor Standards Act of 1938, as amended. To the best of the Seller's knowledge, the Goods also comply, as applicable, with the Occupational Safety and Health Act of 1970, the Toxic Substances Control Act of 1976, and other relevant laws and regulations of any applicable jurisdiction. The Seller's liability under this provision is limited to that stated in Section 5.5 above.

14. Use of Goods.

Buyer agrees to comply with all applicable federal and local laws, rules, and regulations related to its business and the use of the Goods.

15. Indemnification

  • 15.1 Buyer shall indemnify, defend, and hold harmless Seller and Seller's owners, officers, directors, employees, agents, subsidiaries, affiliates, and contractors (collectively, the “Seller Indemnitees”) from and against any and all liabilities, claims, costs, fees, damages, losses, and expenses (including, without limitation, reasonable attorneys’ fees and court costs) (collectively, “Losses”) which a Seller Indemnitee may incur or suffer as a result of (i) Buyer's failure or omission to comply with the terms of this Agreement; and (ii) any actual or alleged infringement of any patents, copyrights, or trademarks arising from the manufacture or sale of products in accordance with patterns, designs, specifications, drawings, directions, technical information, or data furnished to Seller by Buyer.
  • 15.2. Any party seeking indemnification under this Agreement (the “Indemnitee”) shall give at least five (5) business days prior written notice to the party from whom indemnification is sought (the “Indemnitor”) upon becoming aware of any claim for which indemnification may be applicable, including such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Indemnitor to determine whether and to what extent Indemnitee is entitled to indemnification. Failure to provide such notice shall be deemed a waiver of the Indemnitor’s indemnity obligations under this Agreement only to the extent that the Indemnitor suffers material damage as a result thereby.

16. Medical application.

In the event the Buyer uses or attempts to use the Goods in medical applications, the Buyer acknowledges and agrees as follows:

  • a. The Goods are manufactured under normal industrial conditions, which may not meet the requirements applicable to products intended for certain medical applications. It is the sole responsibility of individuals or entities considering the use of the Goods for medical purposes to ensure compliance with all applicable laws, rules, regulations, codes, and standards.
  • b. Unless expressly specified in writing by the Seller, the Goods have not been designed, manufactured, tested, or qualified for use in certain medical applications (including life support systems). Furthermore, the Seller has not sought or obtained any rulings from federal or local government agencies regarding the safety, effectiveness, or appropriateness of the Goods for such applications. Individuals or entities intending to evaluate or use the Goods for medical purposes must rely on their own medical and legal judgment without any representation from the Seller. The Buyer waives any and all claims against the Seller in connection with the use of the Goods in medical applications.
  • c. The Buyer shall indemnify, defend, and hold harmless the Seller Indemnitees from and against any and all Losses arising out of or related to bodily injury (including death) or property damage resulting from the incorporation of the Goods as part of any product made by the Buyer or the Buyer's immediate or ultimate customers for medical applications, including without limitation cardiac pacemakers, defibrillators, electrodes, leads, programmers, and their components. The Seller shall provide the Buyer with prompt written notice of any such claim and cooperate in the defense of such claim at the Buyer’s expense.
  • d. The Buyer shall indemnify, defend, and hold harmless the Seller Indemnitees for any and all Losses incurred or suffered by the Seller as a result of the Buyer’s failure to comply with the terms and conditions stated herein.

17. Severability.

All provisions of this Agreement shall be considered as separate items and conditions, and in the event that any one shall be held illegal, invalid or unenforceable, all other provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable provision were not a part hereof, provided however, that whenever possible, the illegal, invalid, or unenforceable provisions shall be deemed modified and effective to the extent it may thereby be made legal, valid and enforceable.

18. Binding Effect.

All provisions and terms of the contract between Buyer and Seller shall inure to the benefit of and become binding upon the heirs, executors, administrators, successors, representatives, receivers, trustee, and assigns of the Parties.

19. Acknowledgment.

Buyer, having carefully read all provisions of this Agreement, acknowledges receipt of a copy of this Agreement and agrees that the terms contained herein shall supersede those terms in the purchase order which are conflicting, inconsistent or contradictory therewith, and that it has not relied upon those representations or warranties with respect to the goods except those expressly set forth in this Agreement.

20. Governing Law.

These Terms shall be governed by Dutch law. Seller and Buyer shall make reasonable efforts to resolve any disputes amicably. If no resolution is reached, the Parties agree to submit to the exclusive jurisdiction of the courts of the Netherlands, except in matters of enforcement, where the jurisdiction shall be non-exclusive. Notwithstanding the foregoing, the Parties shall comply with all applicable local laws and regulations in the jurisdictions where they operate or conduct business.