1. APPLICABILITY. Unless otherwise expressly agreed between the Parties in writing, these GTC shall apply to all legal relationships under which VECTOR shall offer and provide Services. VECTOR does not agree to the application of any general conditions and clauses used or specified by the Client in the Purchase Order or any other documents, unless VECTOR expressly agrees for such different conditions or clauses in writing.
2. CLIENT REPRESENTATIONS. Client represents and warrants that subject of Services and its effect (Products): (1) are not dual-use goods in accordance with Council Regulation (EC) No 428/2009 of 5 May 2009 with amendments; and (2) shall not be used for any illegal activity.
3. DEFINITIONS. For the purpose of these GTC, unless the context shows otherwise, any words and expressions which have been indicated herein are defined terms to which the following meaning is assigned: Affiliate - means, with respect to a Party at a given time, an entity that then is directly or indirectly controlled by, is under common control with, or controls that Party, and here “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests in that entity; Agreement – a formal basis for the provision of Services, consisting of the Purchase Order, GTC, the Specification and any other documentation agreed between the Parties in writing as defining manner of performing Services; Authorized Representative (AR) – means a person entitled to represent Client with regard to any statement related to a conclusion, an execution or termination of the Agreement; VECTOR’s AR may be designated in the Offer; BOM (Bill of Materials) – means an extensive list (which may vary depending on the Product) of materials, components, and assemblies required to construct, manufacture or repair the Product, provided to VECTOR by the Client, including but not limited to: the name of the manufacturer, manufacture’s part number, reference designator, general description, total quantity, package size and style, component tolerance, possible substitute manufacturer and part number; BOM constitutes part of the Specification; Client – means an entity that concluded the Agreement with VECTOR; Group – means a capital group (within a meaning of the accounting provisions applicable to VECTOR) to which VECTOR is a member; Excess Material – means the material that has been contracted, procured by VECTOR under the Agreement that is in excess to current demand for Material, in reference to Client’s Purchase Order; GTC – this document along with its attachments, defining the common principles for the provision of Services within the Offer; Intellectual Property Rights / IPR – means all patents, trademarks, service marks or business names, registered designs, copyrights, design rights, utility models, topography rights, applications to register any of the aforementioned rights, trade secrets, know-how and rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world; in writing/written – means the following forms: (1) paper document with original signatures of AR; (2) scan of document refer to in point (1) above sent via e-mail; (3) e-mail send by Authorized Representatives designated with the use of forms (1) or (2) above; Internal Procedures – means VECTOR’s documentation related to the execution of Services, including manufacturing instructions describing production process at VECTOR’s site; Materials – means all materials/components indicated or otherwise accepted by Client to be incorporated into Product; NRE (Non Recurring Expenses) – means all costs and expenses not included in BOM necessary to start performing of Services by VECTOR, including related to preparation of assembly process, such as stencils for paste printing, frames for wave soldering, machine setup and programming, preparation of documentation, including manufacturing instructions and other necessary expenses; Obsolete Material – means the Material that has been contracted, procured by VECTOR in order to fulfil Client’s Purchase Order under the Agreement, which no longer appears on Client’s BOM; and /or Material removed from Specification as a result of changes initiated by Client, or otherwise as a result of individual agreements in writing between Client and VECTOR; Offer – means a proposal of rendering the Services by VECTOR to a potential Client; Purchase Order (PO) – means Client’s written order for a particular type of Services available in the current Offer; Party – shall mean VECTOR or Client and Parties shall mean VECTOR and Client jointly; Product – means the material/tangible effect of performing Services defined in the Specification; Services – mean any electronic manufacturing services (EMS) performed by VECTOR for the Client under the Agreement, which may comprise, but are not limited to: procurement services of Materials indicated in Client’s BOM (purchasing activities only, not supply or sale of Materials), assembly of Products, testing of completed assembly, subassembly and final assembly of Product, configuring, packaging and/or shipping Products; Services shall never be regarded as supply/sale of products; precise scope of Services shall be indicated in the Offer and the Purchase Order; Specification – means a set of documentation provided by Client to VECTOR, necessary and sufficient to provide Services including, but not limited to: BOM, schematics, designs, assembly drawings, process documentation, test specification, packaging requirements, quality requirements, current revision number, approved manufacturer list, techniques, diagrams of processes, procedures, know-how and other technical information relating to the design and assembly of Product; Stock – means jointly Excess Material, Obsolete Material, Products manufactured but not yet shipped, half-Products, regardless of whether stored in VECTOR’s premises or contracted or ordered by VECTOR for the purpose of performing Services under the Agreement; VECTOR – means “VECTOR” sp. z o.o. duly incorporated under the laws of Poland, with its principal place of business in Gdynia (postal code: 81-577), 6 Krzemowa Street, entered in the National Court Register (Register of Entrepreneurs) kept by the District Court Gdańsk-Północ in Gdańsk, VIII Commercial Division of the National Court Register, KRS no. 0000077848, NIP (tax identification number) no. PL5840152246, REGON no. 008141770, BDO no. 000008751, share capital at 66.877.000,00 zł (Polish zloty).
4. CONCLUSION OF THE AGREEMENT. Agreement is concluded only when the Purchase Order is explicitly accepted by VECTOR in writing. Any amendment to the Agreement is binding only if it is accepted in writing. The Purchase Order needs to be placed by Authorised Representative of the Client and VECTOR is entitled to request documents confirming authorisation to act on behalf of the Client. In case of discrepancies between the content of the Purchase Order, GTC and the Specification, the provisions of the Purchase Order shall prevail.
5. VECTOR’S MANUFACTURING PROCESS. By signing the Purchase Order the Client accepts VECTOR’s manufacturing process as well as accepts typical Materials used by VECTOR for manufacturing of the Products but not indicated in BOM. Before signing the Purchase Order the Client is entitled to request a copy of the Internal Procedures related to the execution of Services and apply at its own cost within 7 days following receiving the Internal Procedures for dedicated amendments if Client finds it necessary for manufacturing of the Products. After this 7 days period (or earlier if confirmed in writing) it is deemed that Client accepted VECTOR’S manufacturing process without any reservations. Compliance with VECTOR’s manufacturing process rules shall be criterium for acceptance of Services and verification of existence of any workmanship defects for which VECTOR is liable. The manufacturing process is carried out in accordance with IPC - A - 610; class 2.
6. INFORMATION FROM CLIENT. The Client is under a duty to provide VECTOR with any information, instructions and documentation, which is necessary for the proper performance of Services, in the Specification. Client is responsible for any errors or omission in the Specification. VECTOR is entitled to refrain from performing Services without any lability as long as the Specification is unclear, insufficient or causes doubts regarding proper performance of Services and Client does not clarify all the doubts.
7. NRE. Client shall pay to VECTOR NRE. Amount of NRE shall be indicated in the Offer and shall be accepted by the Client in the Purchase Order. Any changes to the accepted Purchase Order requested by the Client may result in additional NRE to be agreed between the Parties.
8. MATERIALS. Unless otherwise agreed in writing Services comprise contracting of Materials included in Client’s BOM (with indicated manufacturing part number), ordering Materials, physical purchase of Material and placing warranty claims regarding Material (on detailed terms and conditions described in clause 15 hereof). VECTOR shall execute initial inspection of the Material in accordance with Internal Procedures, unless otherwise agreed in writing. Purchase of the Material shall be executed on the basis of the Purchase Order . Client accepts that a seller of Materials may impose on the buyer requirements such as Minimum Order Quantities (MOQ), lead times and any other which may cause creation of Obsolete Material or Excess Material. Client shall be obliged to buy from VECTOR entire Stock within 30 days following notification by VECTOR, unless Materials in Stock can be used for executing of another Purchase Orders placed by the Client and accepted by VECTOR. Client’s failure to purchase of such Stock shall give VECTOR entitlement to issue an invoice documenting sale of such Stock to the Client (or pro forma invoice) and Client shall be obliged to pay for it within 14 days following receiving invoice (or pro forma invoice respectively) and collect Stock within 14 days following collection request from VECTOR. Client’s failure to collect the Stock enables VECTOR to request storage fee for entire storage period equal to 10% of value of the Stock per month. VECTOR is entitled to request from the Client prepayment for Materials.
9. PRODUCTS’ SHIPMENT. Products shall be shipped in accordance with FCA (Incoterms 2010) VECTOR’s premises in Gdynia, Poland. Risk of loss, damage and title as well as insurance responsibilities shall pass to Client, when Products (or any other items) are handed over to the carrier or shipping agent. Client is obliged to pay any additional costs of shipment which are result of Client’s action, demands (urgent shipment) or omission. Shipment dates are estimated by VECTOR and are not guaranteed by VECTOR, especially due to circumstances that are beyond VECTOR’s control and may influence eventual delivery date. VECTOR shall use its best effort to meet shipment dates and shall notify the Client immediately of any anticipated delay of shipment, indicating new date of a shipment. If shipment is not possible due Client’s failure to provide VECTOR with necessary information or instruction VECTOR is entitled to charge the Client with additional market value storage fee.
10. ACCEPTANCE OF SERVICES. Client has the right to inspect and test the Products within twenty (20) days following shipment date. Should Products occur to be incompliant with the express limited warranty set forth in clause 13 of these GTC, the Client shall have the right to reject such Products during that twenty (20) day period. Services shall be deemed accepted if the Products are not rejected within the above stated period. The Client should return allegedly defective Products and provide all necessary information required by VECTOR’s claims procedures. If the Product after its return occurs not to be defective the Client shall pay to VECTOR all the costs related to testing of the Product and return shipment costs.
11. PRICES. Unless otherwise agreed in writing, prices indicated in VECTOR’s Offer shall be binding for 30 days and they do not include charges, taxes (including VAT where applicable), customs duties, and other civil and legal payments related to the provision of Services, which will be added to the price at the time of issuance of an invoice, nor additional costs related to the activities undertaken by VECTOR on the request of the Client which do not fall within the scope of the contracted Services. Prices also do not include costs of packaging (other than standard packaging or included in BOM), shipping and insurance costs, unless otherwise agreed in writing. All the payments and costs are to be borne by the Client, and if VECTOR made the payments according to the binding law, the Client shall immediately reimburse VECTOR with the equivalent of the payments made. Prices may be adjusted by VECTOR if after placing Purchase Order: (1) Client requests any changes to the Services, including engineering changes; (2) when total cost of the Material, recalculated to the same currency which the price of the Product is expressed in, changes by 1% due to change of exchange rates between exchange rates at the time of acquiring Material and rates presented in the Offer; (3) upon occurrence of changes in the law that will influence the costs of the Services, like additional taxes, fees, etc.
12. PAYMENT TERMS. Invoice shall be payable within 14 days following its issuance, unless otherwise agreed in writing. Client accepts electronic invoices. No payment shall be deemed to have been received until VECTOR has received cleared funds. Any payments made by the Client shall be made without any set off or counterclaim. No payment shall be made with split-payment formula, unless it is required by the law. If payment is late, VECTOR may claim the statutory interest for late payment in commercial transactions in Poland. VECTOR is entitled to deduct from payment any withholding tax required by mandatory provisions of the law, if Clients does not deliver to VECTOR on time a tax residence certificate releasing VECTOR from obligation to deduct withholding tax and is entitled to set off any amounts Client may be due to VECTOR.
13. LIMITED WARRANTY FOR SERVICES. VECTOR warrants that the Product shall be assembled free from workmanship defects which shall be verified based on the Specification requirements and compliance with Internal Procedures. . Any other warranties either statutory, by operation of law, express or implied, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, non-infringement, title and any warranties arising out of usage or trade are hereby excluded. VECTOR does not guarantee nor takes any responsibility for any errors or omissions in the Specification (initial or its subsequent amendments by Client) including the design of the Products and results of the design, expected functionality or Materials set forth in the Specification, defective Client-provided test equipment or test software, unit of the Product not intended for commercial resale – which is Client’s sole responsibility. The above limited warranty shall remain in force for a period of 12 months) from the date of shipment of Product to Client ("Warranty Period") and after that period any VECTOR’s warranty expires.
14. WARRANTY PROCEDURES. Upon occurrence of defect in the Product the Client should immediately notify VECTOR providing it with all details required to identify the Product and the defect and fill in standard “Return Material Authorisation” ("RMA") form and follow VECTOR’s instruction regarding in particular designated facility where allegedly defected Products should be sent. Cost of shipment of defected Products is borne by Client. Defected Product for which VECTOR is liable shall be repaired within 30 days following receipt by VECTOR of the RMA, Product and all required associated documentation. If due to unavailability of Material 30 days period is not sufficient to remedy the defect VECTOR shall inform the Client about the reason of postponement and its expected time. If workmanship defect for which VECTOR is liable is confirmed VECTOR shall reimburse to the Client costs of transportation of defected Products and shall pay cost of shipment of repaired Products. If the Products shall occur not to be defective or shall have defect for which VECTOR is not liable costs of return shipment to the Client shall be borne by the Client. In that case the Client shall also pay to VECTOR fee for inspection of allegedly defected Products.
15. DEFECTS IN MATERIAL. Client is solely responsible for selection of Materials and result of such selection regardless of the fact of procurement of such Material by VECTOR in accordance with clause 8 hereof. Client is obliged to precisely, clearly and unambiguously indicate and describe characteristic of the Material in BOM. VECTOR is only entitled to use different Material than selected by the Client if such change is approved in writing. VECTOR is entitled to choose a seller of the Material, unless Client requests acquisition of Material from a specific supplier or manufacturer. VECTOR makes no representation, covenant or warranty with respect to the extent or enforceability of the manufacturer’s or Material supplier’s warranty. Upon occurrence of defect in Material VECTOR shall handle on behalf of the Client any quality claims related to Material, providing that Client presents evidence that the Material was non-conforming to material specification. The Client shall be solely responsible for any additional costs related to claim procedure, including costs of experts opinion and cost of extra work on the side of VECTOR.
16. CONFIDENTIAL INFORMATION. The Parties acknowledge that they and their respective employees, nominees, advisor, agents Affiliates or other representative (collectively, “Representatives”) will have access to and will be entrusted with detailed confidential information and trade secrets (“Confidential Information”) relating to their present and contemplated operations, included in particular in Specification and Internal Procedures. With regard to information provided by Client only those expressly marked as “confidential” shall be regarded as “Confidential Information” hereunder. For purposes of the Agreement, “Confidential Information” includes also the existence and any term of this Agreement, the negotiations leading up to this Agreement or the transactions or arrangements contemplated or referred to herein. The Parties undertake to use Confidential Information only for the purpose of executing their rights and duties under the Agreement and disclose them only to Representatives involved in the execution of the Agreement who are subject to confidentiality duty on conditions not worse than regulated herein and to entities authorised by law. Confidential Information does not comprise information that are or shall become available publicly. VECTOR is entitled to keep a copy of Confidential Information for its record in accordance with its internal procedures. Confidentiality duty expires 5 years after termination or full execution of the Agreement. The Client agrees to refer by VECTOR and its Affiliates on their website and its marketing materials to the fact and scope of the cooperation of the Parties covered by the Agreement. To this end, the Client permits VECTOR and its Affiliates to use Client’s name, trademark or logo.
17. INTELLECTUAL PROPERTY RIGHTS. Each Party shall retain ownership of all Intellectual Property Rights, including owned by it at the time of conclusion of the Agreement. Any Intellectual Property Rights created after conclusion of the Agreement, including the right to allow exercising neighbouring rights and resulting out of the execution of the Agreement, except to the extent that they comprise or incorporate IPR supplied by Client, shall be obtained and owned exclusively by VECTOR, unless otherwise stated in the Agreement and Client shall acquire no right, title or interest therein. By handing over documentation comprising IPR the Parties grant to each other a non-exclusive, non-assignable, non-transferable license to use the IPR and documentation to the extent necessary to perform rights and duties under the Agreement. The Parties agree (except to the extent necessary to perform the Agreement) not to copy, adapt, reverse engineer, decompile, disassemble, modify or create derivative works of any IPRs being property of the other Party. The Client hereby confirms that he is a proprietary owner of all IPRs to the Specification, Product and any other materials and information provided to VECTOR for the purpose of performing Services and that delivery of those information does not infringe any third party IPRs.
18. PERSONAL DATA PROTECTION. VECTOR is a controller (hereinafter "Controller") within the meaning of art. Article 4 (7) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (general Data Protection Regulation) (text with EEA relevance) (OJ L 119, 4.5.2016, hereinafter "GDPR") of Client’s personal data, persons referred to in the Agreement as persons representing the Client, contact person in connection with the performance of the Agreement, persons responsible for the performance of individual powers and obligations under the Agreement and other persons on the Client's side in connection with the Services provided, the personal data of which the Client communicated to the Controller. Client undertakes to fulfil on behalf of Controller the obligation to provide information to the persons, whose personal data has been communicated to the Controller in connection with the conclusion and execution of the Agreement. Scope of such information is included in the Information for data subject which constitutes attachment to this GTC.
19. INDEMNITY. Client agrees to indemnify and hold harmless VECTOR, its officers and directors, employees and its subcontractor and Affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of infringement or violation of any patent, copyright or IPR of a third party by the Specification, the Product or any other information provided by Client to VECTOR or future cause damages of any kind caused by the Product as well as falsehood of any Client’s representation or warranty.
20. LIMITATION OF LIABILITY. Except for wilful misconduct or gross negligence VECTOR shall never be liable to the Client for any special, consequential, incidental, punitive, or indirect damages, any loss of profits or revenue arising from or relating to any breach of the Agreement, regardless of any notice of the possibility of such damages, whether such liability is based on contract, tort or otherwise. Aggregate liability of VECTOR arising out of or relating to the Agreement is limited to the payments made by the Client for units of affected Products which are the source of Client’s claim.
21. FORCE MAJEURE. VECTOR shall not be liable for non-performance or improper performance of its duties and obligations arising out of the Agreement and any consequences thereof, including but not limited to any loss or damages suffered by the Client, if the non-performance or improper performance of obligations is the result of an event beyond the control of VECTOR, in particular concerning VECTOR, its subcontractors or third party providers (hereinafter "Force Majeure"). By the Force Majeure, the Parties understand in particular, but not exclusively, those that have a negative impact on the VECTOR’s ability to perform its obligations under the Agreement: war, terrorist activities, fire, flood, explosion, riots or strikes, universally binding act or individual legal acts directed to VECTOR, factual or legal actions of public or local government administration authorities, suspension, delay or withdrawal of the permit regarding the possibility of exporting or importing or other license necessary to implement the subject of the Agreement. If Force Majeure event occurs VECTOR shall notify the Client without unreasonable delay: (1) that the Force Majeure event occurred, with the description of Force Majeure; (2) effect of Force Majeure event on VECTOR’s ability to perform its obligation under the Agreement. Occurrence of Force Majeure event results in (decided at sole discretion of VECTOR) suspension or cancelation (total or partial, depending on the effect of Force Majeure event) of VECTOR’s obligation under the Agreement or an extension of the delivery periods as long as Force Majeure event exists. Upon occurrence of Force Majeure event the Parties shall undertake commercially reasonable efforts to minimize effect of Force Majeure and they shall negotiate to adapt the Agreement to the circumstances caused by Force Majeure.
22. SUSPENSION OF SERVICES. VECTOR is entitled to refrain from performing any of its obligations towards the Client (including to refuse or withhold any shipment to the Client): (1) if the Client does not provide VECTOR with information or documents necessary to render Services; (2) until a full due amount owed by the Client to VECTOR hereunder is settled by the Client (3) VECTOR has reliable evidence that the Client is unwilling or unable to pay for Services, in particular due to its difficult financial situation. In such cases VECTOR shall be released from any liability against Client for postponing any deadlines agreed in the Agreement.
23. CANCELLATIONS AND TERMINATION. Purchase Order are non-cancellable, unless otherwise agreed in writing. VECTOR is entitled to terminate the Agreement immediately by giving notice to the Client if: (1) the Client has committed a material breach of the Agreement (including but not limited to the failure by the Client to make on time any due payments) and failed to cure such breach within 30 days after notice thereof, provided however that if such breach is not reasonably susceptible of being cured, no cure period shall be applicable; (2) the Client becomes bankrupt or insolvent or is the subject of proceedings or arrangements for liquidation or dissolution or ceases to carry on its business or becomes (in the opinion of VECTOR) unable to pay its debts as they become due; (3) any entitlement of the Client to IPR necessary to perform Services is (or occurs to be) terminated, cancelled or revoked or infringes third party rights.
24. EFFECT OF CANCELLATION OR TERMINATION. Upon termination of the Agreement, all amounts then due and unpaid by the Client to VECTOR, as well as all other amounts accrued but not yet payable to VECTOR by the Client, shall forthwith become due and payable. After cancellation of Purchase Order or termination of the Agreement the Client is obliged, not later than within 30 days following receiving of cancellation/termination notice, to buy from VECTOR Stock (under the terms described in clause 8 hereof) and pay any other costs incurred by VECTOR as a result of cancellation, including but not limited to: NRE, costs of labour. Termination or cancellation does not affect rights and obligation of the Parties and provisions of the Agreement which by their nature survive, including confidentiality and indemnity.
25. SUBCONTRACTORS. VECTOR may subcontract the provision of all or a part of the Services to a third party (subcontractor) without the need for a separate consent of the Client, providing that VECTOR will retain the responsibility in relation to the Client for non-performance or improper performance of the Agreement by such subcontractor.
26. ASIGNMENT. The Agreement is binding upon and will benefit the Parties and their respective successors and permitted assigns. Transfer of all or any of its rights and obligations under the Agreement requires written consent of the other Party, without prejudice to VECTOR’s right to execute such transfer at any time to any VECTOR’s Affiliate at its sole discretion without the need for separate consent of the Client.
27. SEVERABILITY. If any provision of the Agreement or the application of it is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of the Agreement are declared to be severable.
28. GOVERNING LAW AND VENUE. The Agreement and any claim, controversy or dispute arising under or related to it shall be governed by and construed in accordance with the laws of Republic of Poland, without regard to principles of conflicts of laws, particularly the rules on conflict of laws. The Parties to the Agreement hereby consent to the exclusive jurisdiction of any court competent jurisdiction located in Gdynia (Poland) or Gdańsk (Poland), in connection with any actions or proceedings arising directly or indirectly from the Agreement.
29. ENTIRE AGREEMENT. The Agreement, together with any schedules and exhibits (if any) attached thereto, constitutes the entire agreement and understanding of the Parties with respect to the subject hereof, and supersedes all prior oral or written agreements, contracts, understandings and communications of the Parties in respect of the subject matter of the Agreement. No amendment, modification or waiver of any of the terms of the Agreement shall be valid unless set forth in writing and duly signed by the Party against whom enforcement of such amendment, modification or waiver is sought. No delay or failure on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, be construed as a waiver of any other right, power or privilege. The rights and remedies provided in the Agreement are cumulative and are not exclusive of any rights or remedies that any Party may otherwise have at law or in equity.