1. Scope
The supplier's (the "Supplier") general terms and conditions of sale will be negotiated in light of these General Terms and Conditions of Sale. These General Terms and Conditions of Sale apply to all purchases of ASM, whether for tooling, equipment, parts, components, assemblies and sub-assemblies, raw materials, or services (the "Supply(ies)"). Any exceptions to these terms may be specified on the purchase order itself or in a separate written agreement.
The term "Order" refers to the purchase order issued by ASM, these General Terms and Conditions, the documents that define the characteristics of the Supplies (plans, specifications, terms of reference, etc.) and those that specify the other contractual conditions (the "Documents").
2. Order
Supplies must be ordered through a purchase order, either for an indefinite period (the "Open Order") or a fixed period (the "Closed Order"). The Order is transmitted by mail, fax, or any agreed electronic means.
The Supplier's acceptance of the Order is effected by sending the order acknowledgment attached to the purchase order, no later than eight (8) business days from the date of the Order. Any Order for which no acknowledgment is received but which is executed by the Supplier, in whole or in part, is deemed accepted.
Any quantities indicated in the Open Order are indicative only and do not constitute a firm commitment on the part of ASM. An Open Order is supplemented by periodic delivery requests establishing the quantities to be delivered and the delivery dates.
By accepting the Order, the Supplier undertakes to provide and/or perform the Supplies in accordance with ASM procedures and the ASM Quality System and any other Quality procedures in place at the time of the Order.
3. Specific Obligations of the Supplier
The Supplier undertakes that the Supplies to be delivered shall be produced in accordance with the laws, regulations and standards relating to hygiene, safety, environmental protection and labor law in force in each of the States involved in their production.
In France, the Supplier undertakes to comply with regulations prohibiting undeclared work and to provide ASM, upon first request, with the documents required by law and regulations certifying that the Supplier's employees are legally employed. Furthermore, the Supplier will adhere to labor, environmental, and anti-corruption standards in the conduct of its business.
The Supplier, as a professional in its field, undertakes to provide ASM with the necessary or useful recommendations and warnings for the quality and safety of the Supplies, to make all recommendations taking into account the use for which they are intended, and to make all proposals likely to improve the quality or cost of the Supplies.
The Supplier undertakes to respond as soon as possible to any request for information from ASM on the Supplies and to certify their origin and composition.
ASM may at any time submit a request to the Supplier to modify the Documents. The Supplier must, without delay, provide ASM with a feasibility proposal including a timeline, along with an analysis of the potential consequences on the quality/reliability of the Supply and the impact on production costs.
The Supplier may not make any changes to the Supply, including making a change of component, material, process or place of manufacture, without prior validation in accordance with ASM procedures.
The delivery date specified in either the Closed Order or a delivery request related to an Open Order is an essential element of the Order and its strict adherence is binding on the Supplier once the Order has been accepted. No early delivery will be accepted without the prior written consent of ASM.
The Supplier will be responsible for any direct or indirect, tangible or intangible damages caused to ASM by a delay in delivery, including operating losses resulting from a shutdown of its production line.
If the Supplier is required to work on an ASM site, it agrees to comply with the site's internal regulations as well as all applicable laws and regulations. The Supplier will remain solely responsible for its personnel working on the ASM site.
4. Intellectual Property Rights
The Supplier is solely responsible for ensuring the validity of its intellectual property rights relating to the Supplies and for the free use of the Supplies with respect to the intellectual property rights of third parties. The Supplier shall indemnify ASM against any claim and/or demand from third parties based on infringement, unfair competition, or any similar action.
In the event of a claim of intellectual property rights by a third party, the Supplier undertakes, at its sole expense and at ASM's option, either to obtain for ASM and its customers the right to freely use the Supply, or to replace or modify the Supply so that its use can no longer be contested.
5. Price, Billing and Payment Terms
5.1 Price
The applicable prices are those stated in the Order. They are firm and, unless otherwise agreed, are "delivered duty paid – DDP – Incoterms 2010" at the delivery location of the Supplies indicated in the Order. The prices are fixed and compensate the Supplier for all costs, risks, charges, and obligations of any kind.
Prices may be subject to change following good-faith negotiations in the event of a substantial change in economic conditions (particularly raw material prices). They may not be modified without the express agreement of both parties.
5.2 Invoicing and Payment Terms
The invoice must include all the information contained in the Order allowing for the identification and control of the Supplies and be sent to the billing address shown on the front of the order form.
Unless otherwise agreed, in France, the payment period for Supplies (excluding tooling) is 60 days from the invoice date. The payment period for tooling is as specified in the Documents.
In the event of late payment, the penalty rate shall not be less than three times the legal interest rate in France. ASM shall have the right to offset any sums owed to it by the Supplier, after having informed the Supplier.
6. Packaging and Shipping Documents
The Supplier will deliver the Supplies in packaging appropriate to their nature, the mode of transport used, and storage requirements, ensuring delivery in perfect condition. The Supplier will be liable for any damage resulting from unsuitable or improper packaging.
Each unit of packaging must bear on the outside and in a legible manner the information prescribed by the applicable regulations, as well as the Order number, the lot number, the description of the Supplies, the names and addresses of the sender and the recipient, the quantity of units contained, the gross and net weight of the package.
7. Delivery
The Supplies are delivered to the location indicated in the Order, accompanied by a delivery slip in duplicate recalling the identification details of the Supplies as well as their quantity.
ASM reserves the right to refuse all or part of the delivery of Supplies in the event of late delivery, incomplete or excess delivery, or non-compliance with the Order.
The absence of reservations or complaints upon acceptance of delivery does not constitute final acceptance of the Supplies delivered nor a waiver by ASM of any subsequent recourse.
After delivery, ASM will make its best efforts to notify the Supplier of any non-conformities or apparent defects in the Supplies within a period of approximately eight (8) clear days from the time when their detection became possible.
8. Guarantees
The Supplier, an expert in its field, is bound by an obligation of result and assumes in this capacity the full responsibility for the Supply, its design, its manufacturing process and its suitability for the use for which it is intended.
The Supplier guarantees in particular that the Supplies conform to the Order, the Documents and the applicable standards; are fit to perform the functions for which they are intended; are free from any apparent or hidden defects; and are free from any third-party intellectual property rights.
In the event of non-compliance, the Supplier shall indemnify ASM for all bodily injury, property damage and intangible losses, direct and indirect, suffered as a result, including the cost of all actions related to the replacement of defective Supplies.
9. Insurance
The Supplier shall take out an insurance policy with a reputable and solvent company, in accordance with ASM's terms and conditions, and shall provide proof thereof upon first request. The coverage amounts of this insurance shall in no way constitute a limit of the Supplier's liability.
10. Intuitu Personae – Subcontracting
The Supplier may not assign and/or transfer the Order, even free of charge, in whole or in part, without the prior and express consent of ASM.
In the event of a change of control of the Supplier, whether direct or indirect, or the sale of its business, ASM shall have the right to terminate the Order. The Order may not be subcontracted, in whole or in part, without the prior express consent of ASM.
If the Supplier is authorized to subcontract all or part of the Order, it will remain solely and fully responsible to ASM for the execution of the Order and compliance with the General Terms and Conditions.
ASM may assign or transfer, in whole or in part, the Order to an affiliated company or to a successor in all or part of its business.
11. Confidentiality
All information communicated to the Supplier by ASM, regardless of the form of communication (oral, written or otherwise), including drawings, diagrams, descriptions, specifications, reports, electronic media, software, samples and prototypes, is confidential (the «Information»).
The Information may only be used in connection with the Order. The Supplier will take all necessary measures to ensure that no Information is communicated or disclosed to any third party without the express consent of ASM.
This confidentiality obligation shall survive the termination of the Order for a period of five (5) years. Upon termination of the Order, the Supplier shall return to ASM all related documents, without retaining any copies.
12. Transfer of Ownership and Risks
Upon acceptance of the Order, ownership of the Supplies is transferred to ASM as they are produced. The Supplier undertakes to implement all necessary measures to distinguish the Supplies from its own inventory in order to avoid confusion with its own stock.
ASM reserves the right, during the Order and before delivery, to carry out any check of the manufacturing processes of the Supplies in the premises of the Supplier or its possible subcontractors.
The transfer of risks relating to the Supplies shall take place according to the Incoterm indicated in the Order and, in the absence of an Incoterm, upon delivery of the Supplies.
13. Molds, Tooling and Other Specific Equipment
All molds, tooling and other specific equipment (the "Equipment") made available to the Supplier by ASM or produced at ASM's request, remain or become the property of ASM or its customer.
The Equipment may only be used to fulfill the Order and may not be loaned, made available to third parties, reproduced or copied, pledged, or encumbered with any security interest. No modifications may be made to the Equipment without the express consent of ASM.
The Supplier, as custodian, guarantees the Equipment against the risks of loss, theft, damage, or destruction and will insure it for its replacement value. At the end of the Order, the Equipment must be returned upon ASM's first request.
14. Termination
14.1 Termination for convenience
The Open Order is agreed upon for an indefinite period. Each party may terminate it at any time by providing sufficient written notice (by registered letter with acknowledgment of receipt). During the notice period, the Open Order must be executed according to the contractual terms in effect at the time of its termination.
The Closed Order is agreed for a fixed term and is not subject to renewal.
14.2 Termination for cause
In the event of a breach by one of the parties of one of its essential contractual obligations, the Order may be terminated automatically and without formalities by the other party, one (1) month after the sending of a formal notice by registered letter with acknowledgment of receipt which has remained without effect, and subject to any damages and interest.
In the event of a change in the Supplier's situation, the Order may be terminated automatically by ASM, subject to a notice period of eight (8) days.
14.3 Consequences of expiry or termination
In anticipation of the expiration or termination of the Open Order, the Supplier shall take all necessary steps to enable ASM to ensure the continued performance of its obligations to its customers. In particular, the Supplier undertakes, if ASM so requests, to transfer to ASM any outstanding parts, components, raw materials, and finished products in its possession, and to return the Equipment along with all related documentation.
15. Miscellaneous Provisions
If any provision of these General Terms and Conditions is found to be invalid or unenforceable, only that provision shall be deemed unwritten and the parties shall in good faith seek to reinstate a provision as close as possible to the original provision.
No tolerance by ASM, even prolonged, shall constitute a novation of the General Terms and Conditions, the Order, and/or the Documents. The Supplier is only authorized to refer to its business relationship with ASM with ASM's prior written consent.
The law applicable to the Order is French law. The parties expressly waive the application of the 1980 Vienna Convention on the International Sale of Goods.
In the event of a dispute, the Commercial Court of Antibes shall have sole jurisdiction, even in the case of a third-party claim or multiple defendants.
