1. Scope
The general terms and conditions of sale of the supplier (the “Supplier”) will be subject to negotiations in consideration of these General Terms and Conditions of Purchase (“GTC”). These GTC apply to all purchases by ASM, whether of tools, equipment, parts, components, assemblies and sub-assemblies, raw materials, or services (the "Supply (s)”). Deviating terms may be on the order form itself or in a separate written agreement. By order (the "Order") is meant the order form issued by ASM, these GTC, the documents which define the characteristics of the Supplies (plans, specifications, specifications, etc.) and those which specify the other contractual conditions (the documents ").
2. Order
The Supplies must be the subject of an order form, for an indefinite period (the "Open Order") or for a fixed period (the "Closed Order"). The Order is sent by post, fax or any agreed electronic means. Acceptance of the Order by the Supplier is made by sending the acknowledgment of receipt attached to the order form, by mail, fax or any agreed electronic means, no later than eight (8) working days from the date of the command. Any Order for which receipt is not acknowledged but which is executed by the Supplier, in whole or in part, shall be 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 calls establishing the quantities to be delivered and the delivery dates.
By accepting the Order, the Supplier undertakes to supply and/or execute the Supplies according to the ASM procedures and the ASM Quality System and any other Quality procedure in place existing at the time of the Order and during the execution of the Order and brought to the attention of the Supplier.
3. Specific Supplier Obligations
3.1 The Supplier undertakes that the Supplies to be delivered will be produced in accordance with the laws, regulations and standards relating to health, safety, environmental protection and labor law in force in each of each of the States involved in their production. In particular, in France, the Supplier undertakes to comply with the regulations relating to the prohibition of concealed work and to provide ASM, on first request, with the documents required by the legal and regulatory provisions certifying that the Supplier's employees are employed regularly. In addition, the Supplier will adopt in the conduct of its business labor standards, the environment and the fight against corruption.
The Supplier, as a professional in his specialty, undertakes to provide ASM with the recommendations and warnings necessary or useful for the quality and safety of the Supplies, to make all recommendations taking into account the use for which they are intended, and make any proposals likely to improve the quality or cost of the Supplies.
As a professional aware of the constraints of the industry, particularly in terms of quality, costs and deadlines, he undertakes to generally comply with the standards and practices of this industry as established by ASM customers.
3.2 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.
3.3 ASM may at any time submit to the Supplier a request for modification of the Documents with a view to making a modification either to the characteristics of the Supply, or to its production process, or to the packaging or logistics specifications. The Supplier must, without delay, submit to ASM a feasibility proposal with timetable, together with an analysis of the possible consequences on the quality/reliability of the Supply and the impact on the production cost. This analysis will be the subject of a discussion between the parties within a period that will take into account as much as possible the planned implementation date, in order to seek a balance as to the technical and economic implementation methods of the modification envisaged. . If at the end of this discussion, such a balance taking into account the interests and constraints of both parties cannot be found, ASM may either renounce the modification or terminate the Open Order in accordance with article 14.1.1.
3.4 The Supplier may not make any modification to the Supply, in particular make a change in component, material, process or place of manufacture in the absence of prior validation within the meaning of ASM procedures and the rules commonly practiced in the industry.
3.5 To secure the proper execution of an Open Order, the Supplier undertakes to put in place and maintain a security plan including in particular a safety stock whose operating and purchasing methods will be negotiated in good faith between the parties, in particular depending on the lead time for the supply of materials and/or components and/or sub-assemblies, the Supplier's process constraints (for example the use of shared resources or the existence of bottlenecks) and the average of ASM's needs over the last 3 months or that of the forecast needs for the next 6 months in the case of the ramp-up of a new product. The use of this stock must be made, unless specifically agreed between the parties, according to the FIFO rule so that the rotation of the stock does not exceed 3 months.
3.6 The delivery time indicated either in the Closed Order or in a delivery call linked to an Open Order is an essential element of the Order and strict compliance with it is binding on the Supplier once it has accepted the Order. No advance delivery will be received without the prior written consent of ASM.
The Supplier shall be liable for direct or indirect, material or immaterial damage that a delay in delivery will have caused to ASM, including operating losses resulting from a stoppage of its production chain, all the costs that would be invoiced to it by its customers, and the additional cost generated by an order for Supplies from a third party intended to compensate for a prolonged inability of the Supplier to deliver.
In addition, ASM may exercise its right to terminate the Order in accordance with Article 14.2 in the event that circumstances lead to the Supplier's lasting inability to deliver on time or in the event that repeated delays cause disruptions in the supply chain and/ or charges or expenses such that maintaining the contract would no longer be commercially sustainable.
3.7 If the Supplier is called upon to intervene on an ASM site, the Supplier undertakes to comply with the internal regulations in force within the site, the legal and regulatory provisions applicable in particular with regard to health, safety, legal of labor and employment relating to work carried out in an establishment by an outside company. It is understood that these same obligations apply to any subcontractors of the Supplier. The Supplier will remain solely responsible for its personnel called upon to intervene on the ASM site and will be responsible for the remuneration, direction and management of this personnel.
4. Intellectual Property Rights
The Supplier is personally responsible for the validity of its intellectual property rights relating to the Supplies as well as the free use of the Supplies vis-à-vis the intellectual property rights of third parties. The Supplier guarantees ASM against any claim and/or claim emanating from third parties which would be based on counterfeiting, unfair competition or any similar action and which would have as its object or could have the effect of prohibiting, limiting or modifying the marketing, sale or the use of the Supplies by ASM or its customers. ASM will notify the Supplier of such actions as soon as possible.
In the event of a claim of an intellectual property right 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,
– either to replace the Supply or modify it so that its use can no longer be disputed. The substituted or modified Supply must in any case comply with the Documents and will be subject to acceptance by ASM and its customers before it goes into production. The Supplier also undertakes to ensure, always at its expense, the recovery of the stocks of disputed Supplies found at ASM and/or its customers. It shall indemnify ASM for all damages suffered by ASM in connection with such a claim and for losses suffered as a result of the disturbances caused in its production and/or those of its customers and the total or partial non-performance of the contracts concluded between ASM and its clients.
5. Price, Invoicing and Terms of Payment
5.1 Price
The applicable prices are those mentioned in the Order. They are firm and agree, unless otherwise agreed, “delivered duty paid – DDP – Incoterms 2010” at the place of delivery of the Supplies indicated in the Order. The prices are fixed and remunerate the Supplier for all costs, risks, charges and obligations of any kind and take into account all the constituent elements of the Order.
Prices may be subject to change following negotiation in good faith in the event of a substantial change in economic conditions (price of raw materials in particular). They may not be subject to any modification without the express agreement of both parties following such negotiation.
The party at the origin of a request for modification of the price which will have been rejected by the other party at the end of a negotiation in good faith must inform the other party, within eight (8) days of its intention, either to pursue the Open Order, or to terminate it in accordance with article 14.1.1 or to seize the competent judge in order to settle the dispute between the parties. During the negotiation and/or until the end of the termination notice and/or until the enforceable and final decision of the judge seized, the Open Order must be executed under the contractual conditions, in particular the price, in force.
5.2 Invoicing and Payment Terms
The invoice must recall all the indications appearing in the Order allowing the identification and control of the Supplies. The invoice must imperatively be sent to the billing address appearing on the front of the order form.
Unless otherwise agreed and/or unless otherwise required by applicable law, in France, the payment period for Supplies (excluding tools) is 60 days from the date of issue of the invoice. The deadline for payment of the tools is that indicated in the Documents.
In the event of late payment, the late payment penalty rate provided for in the Supplier's general terms and conditions may be subject to negotiation. Failing this, the late payment penalty rate may not be less than 3 times the legal interest rate in France.
ASM shall have the option of compensating the sums for which the Supplier would be liable to it for any reason whatsoever, but only after having informed the Supplier thereof in such a way as to enable the latter to check the reality of the corresponding grievance and to confirm the debt of the claim. 'ASM.
6. Packaging and Shipping Document
The Supplier shall deliver the Supplies with packaging adapted to their nature, the mode of transport used and the storage, with a view to delivery in perfect condition. The Supplier shall be liable for damage (breakage, missing items, damage, etc.) which may be due to unsuitable or improper packaging. Each packaging unit must include on the outside and in a legible manner the information prescribed by the applicable regulations, particularly in terms of transport, as well as indications relating to special handling or storage conditions. Mentions will also recall the number of the Order, the batch 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. The delivery will be accompanied by a delivery slip and, if applicable, safety data sheets.
7. Delivery
7.1 The Supplies are delivered to the place indicated in the Order. They are accompanied by a delivery note in duplicate, recalling the identification details of the Supplies as well as their quantity, as shown in the Closed Order or the delivery calls in the event of an Open Order.
7.2 ASM reserves the right to refuse all or part of the delivery of Supplies, by simple letter, fax or any other electronic means 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 the delivery does not constitute final acceptance of the Supplies delivered or a waiver on the part of ASM of subsequent recourse due to non-compliance with the Order or apparent defects. whether or not Supplies.
7.3 After delivery, ASM will make its best efforts to notify the Supplier of non-compliance with the Order or apparent defects in the Supplies, preventing final acceptance of the Supplies with exemplary responsiveness (of the order of eight (8) days francs) from the moment when the usual course of operations has allowed their detection.
7.4 Supplies not definitively accepted as a result of a notification as provided for in article 7.3 by ASM, will be made available to the Supplier at the place indicated in said notification to enable the Supplier to verify the reality of the grievances invoked by ASM. In the absence of dispute and/or examination of the Supplies with exemplary responsiveness (of the order of eight (8) clear days) from notification by ASM, the Supplies must be taken back by the Supplier, at its expense. , risk and peril within the following eight (8) days, failing which the Supplies not taken back will be returned to the Supplier or destroyed, and at its risk and peril and at its expense.
7.5 The Supplier shall be liable for direct and indirect, material and immaterial damage caused to ASM or third parties (in particular ASM's customers) as a result of the Supplier's failure to fulfill its obligation to deliver in conformity, in particular those borne by ASM in connection with the replacement of non-compliant Supplies and any disruptions to its production as well as the costs billed to ASM by its customers.
8. Warranties
8.1 The Supplier, an expert in his specialty, is bound by an obligation of result and assumes, in particular, full responsibility for the Supply, its design (if this has been entrusted to it), its manufacturing process , the technical choices to be implemented for its production and its suitability for the use for which it is intended. ASM's acceptance of the plans, process, specifications or initial samples does not in any way diminish the warranty owed by the Supplier.
The Supplier guarantees in particular that the Supplies are:
– in accordance with the Order, the Documents, the initial samples accepted by ASM, the rules of the trade, the applicable standards, laws and regulations;
– suitable for fulfilling the functions and the use for which they are intended (within the limits of use possibly specified by the Supplier) and offering the security that can legitimately be expected;
– free of any apparent or hidden defect and operating faults
– free from any intellectual property rights of third parties.
8.2 In the event of non-compliance of Supplies with the above guarantee, and in due proportion of its liability, the Supplier shall indemnify ASM for all bodily injury, material and immaterial, direct and indirect suffered as a result by ASM, including non-exhaustively the cost of all actions related to the replacement of defective Supplies and the indemnities paid by ASM to its customers (recovery or recall campaigns included).
9. Insurance
The Supplier will take out an insurance policy with a reputably solvent company, in accordance with the ASM conditions (in relation to the turnover achieved by the Supplier with ASM) and will justify this on first request. The guarantee amounts of this insurance do not in any way constitute a limit of the Supplier's liability.
10. Intuitu Personae – Subcontracting
10.1 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.
10.2 In the event of a change of control of the Supplier, direct or indirect, or transfer of its funds, ASM shall have the right to terminate the Order, in accordance with article 14.2.2.
10.3 The Order may not be subcontracted, in whole or in part, directly or indirectly, by the Supplier, without the prior and express consent of ASM.
If the Supplier is authorized to subcontract all or part of the Order to one or more third parties, it shall remain solely and entirely liable to ASM for the execution of the Order and compliance with the GTC. It must guarantee ASM against any claim by its subcontractors, defend ASM and indemnify it against any consequences of such claims.
10.4 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 activity.
11. Confidentiality
11.1 All information communicated to the Supplier by ASM, one of its affiliated companies or one of its representatives, in particular and without limitation, information of a technical, industrial, commercial or financial nature, whatever the form of the communication ( oral, written or otherwise) including in particular drawings, diagrams, descriptions, specifications, reports, microfilms, electronic media, software and related documentation, samples, prototypes, etc. are confidential (the “Information”).
Also considered as Information is what the employees of the Supplier, its suppliers, subcontractors, agents, permanent or occasional contributors may know during the Order.
11.2 The Information can only be used within the framework of the Order. The Supplier will take all measures to ensure that none of the Information is communicated or disclosed to a third party, not even a subcontractor, except with the express agreement of ASM.
Any breach of this obligation may result in the application of Article 14.2.
11.3 This confidentiality obligation will survive the end of the Order, for whatever reason, for a period of five (5) years. From the end of the Order, the Supplier shall return to ASM, on first request, all documents, confidential or not, relating thereto, without being able to keep a copy (on any medium whatsoever), except with the prior and express agreement of ASM.
12. Transfer of Ownership and Risks
12.1 As of the acceptance of the Order, ownership of the Supplies is transferred to ASM as they are produced. Consequently, the Supplier undertakes to implement all means for the individualization of the Supplies as and when they are produced in order to avoid their confusion with the Supplier's stocks or the goods (goods, tools or equipment) intended to its other customers.
12.2 ASM reserves the right, during the Order and before delivery, to carry out any inspection of the manufacturing processes of the Supplies and the Supplies themselves, on the premises of the Supplier or of its possible subcontractors. The Supplier undertakes to allow ASM free access to its own premises at all times, to guarantee ASM's free access to its subcontractors and to offer the possibility for ASM to test the Supplies, without this option entailing any any diminution of the Supplier's warranties.
12.3 The transfer of risks relating to the Supplies takes place according to the Incoterm indicated in the Order and, failing Incoterm, upon delivery of the Supplies.
13. Moulds, Tools and Other Specific Equipment
13.1 All moulds, tools and other specific equipment (the "Equipment") made available to the Supplier by ASM or executed at the request of ASM, remain or become, as they are produced, the property of ASM or that of its client according to the agreements entered into directly between ASM and its client. They are made available by ASM for the needs of the manufacture of the Supplies under the terms of a loan-for-use contract or a loan-for-use sub-contract (depending on whether the Equipment belongs to ASM or its customer) , which will be agreed before the handover or before the commissioning of the Equipment at the Supplier.
In all cases, and even in the absence of a formal loan contract or sub-contract, the Equipment made or left available to the Supplier is deemed to be deposited with the Supplier as ancillary to the Order. They may only be used to carry out the Order and may not be loaned, made available to third parties, reproduced or copied, pledged or encumbered with security.
They must be provided, at the expense of the Supplier, with a plate affixed in a visible place bearing, in addition to an identification number, the name of the owner of the Equipment according to the indications given by ASM, followed by the mention "non-transferable property and elusive”.
No modification to the Equipment may be made without the express agreement of ASM.
At the end of the Order, for any reason whatsoever, the Equipment must be returned at the first request of ASM or the customer designated by ASM.
13.2 The Supplier, as custodian, guarantees the Equipment against the risk of loss, theft, damage or destruction and will take out insurance for the replacement value of the Equipment. As a prudent and diligent user, he will have to maintain them in perfect maintenance and will be liable for their premature wear and process drifts. It will notify ASM, within a timeframe compatible with the launch of a new Equipment, of normal wear likely to make it necessary to renew said Equipment. He will take out any liability insurance to cover the damage that the Equipment could cause to third parties. Throughout the Order, the Supplier shall justify at least once a year the validity of its insurance policies.
14. Termination
14.1 Termination for Convenience
14.1.1 The Open Order is agreed for an indefinite period, the quantities on which ASM commits being those indicated in the delivery calls.
Each party may terminate it at any time by giving sufficient written notice (by registered letter with acknowledgment of receipt). This notice may be adjusted by express agreement of the parties, taking into account in particular the specificities of the industrial sector, the seniority of commercial relations and practices, in accordance with the provisions of Article L. 442-6 I 5° of the French Commercial Code. .
Thus, if this notice does not allow ASM to ensure the continuity of the performance of its obligations with regard to its customers, the parties will negotiate in good faith the terms of its extension until the restart of production at a other supplier.
During the notice period, whether at the initiative of one or the other party, the Open Order must be executed under the contractual conditions, in particular the price, in force at the time of its termination.
14.1.2 The Closed Order is agreed for a fixed term and is not subject to renewal.
14.2 Termination for cause
14.2.1 In the event of a breach by one of the parties of one of its essential contractual obligations (in particular the punctual delivery of the Supplies of the expected quality under the agreed conditions and their payment), 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 remained in whole or in part without effect during this period, and subject to all damages which the aggrieved party may claim.
14.2.2 In the event of a change in the situation of the Supplier as stated in Article 10.2, the Order may be terminated automatically and without formalities by ASM, subject to eight (8) days' notice.
14.3 Consequences of expiry or termination of the Order
In anticipation of the expiration as in the event of termination of the Open Order for any reason whatsoever, the Supplier shall take all measures and cooperate broadly and loyally to enable ASM to ensure the continuity of the performance of its obligations to the respect of its customers until the restart, with an alternative supplier, of the production of the Supply covered by the Order denounced. In particular, he undertakes, if ASM so requests, to transfer to ASM the stock of parts, components, assemblies and sub-assemblies, raw materials, semi-finished products or finished products that he holds on the date demand ; he likewise undertakes to return, at ASM's first request, the Equipment, in progress or in service, and all their documentation (plans, technical manuals, maintenance manual, etc.).
15. Miscellaneous Provisions
15.1 If any of the provisions of these GTC prove to be null or inapplicable, only this provision will be deemed unwritten and the parties will then seek in good faith to restore a provision as close as possible to the original provision.
15.2 No tolerance by ASM, even extended, shall constitute novation of the GTC, the Order and/or the Documents.
15.3 The Supplier is only authorized to refer to its business relations with ASM with its prior written consent.
15.4 The law applicable to the Order is French law. The parties expressly waive the application of the Vienna Convention of 1980 on the international sale of goods.
15.5 In the event of a dispute, the Commercial Court of Antibes will have sole jurisdiction, even in the event of a warranty claim or multiple defendants.
