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General Purchase Terms and Conditions of Y Soft Corporation

Dated:  September - 12 - 2018
 

1. Scope of applicability of Purchase Terms and Conditions

1.1 These General Purchase Terms and Conditions (hereinafter referred to as “Purchase Terms”) are the business terms within the meaning of Section 1751 et seq. of Act Nr. 89/2012 Coll., as amended (the “Civil Code”) and apply to all deliveries of products, goods, or services (“Products”) provided to Y Soft Corporation with its registered office at Brno, Technicka 2948/13, Postcode: 61600, the Czech Republic, Identification No. 261 97 740, registered in the commercial register maintained by the Regional Court in Brno, Section B, Insert 8045 (hereinafter referred to as “Y Soft”) by a supplier, provider, or contractor of Y Soft (hereafter referred to as “Seller”) and are incorporated into every purchase order issued by
Y Soft to the Seller (“Order”) with the exception of separate written supply agreements concluded between Y Soft and the Seller (each a “Party” and collectively, the “Parties”) that expressly exclude these Purchase Terms. Any modifications to these Purchase Terms or an Order fulfilled by the Seller are only valid if confirmed by Y Soft in writing. No other sales or delivery terms and conditions of the Seller apply to an Order.
1.2 These Purchase Terms relate to the delivery of all Products ordered by Y Soft within or in relation to the operation of Y Soft's business.
 

2. Ordering

2.1 Order. Requests, Orders, delivery instructions, and Order confirmations as well as their amendments and supplements are binding only when made in writing on behalf of the Party and signed by the authorized person/persons and delivered to the other Party via a standard means of delivery (e-mail, facsimile, personal delivery, courier service, etc.). Verbal Orders and Order confirmations (including those made over the phone) are only binding when confirmed without undue delay in writing. When a scanned copy of a request, Order, or other document signed by a Party is delivered to the e-mail address specified by the other Party, the holder of the original signed form of that request, Order, or other document must also deliver that original signed document to the other Party.
2.2 Order Confirmation. The Seller shall confirm the Order in writing within 2 days of its receipt otherwise it is considered refused.
2.3 Any amendments, modifications, or supplements to the Order confirmation that differ from the actual content of the original agreement are binding only if explicitly accepted by Y Soft in writing. By no means shall Y Soft’s silence be regarded as recognition of any changes to the content or confirmation of an Order.
2.4 All written communication regarding Y Soft Orders shall include the Order number, line item number, and, if possible, Order confirmation number.
2.5 Order Assignment. The Order may not be assigned to a third party without Y Soft's prior consent. If Y Soft grants its consent, the Seller is not exempt from its duties within the scope of the assignment and should the assignee fail to fulfil the assigned duties, Y Soft retains the right to require the Seller to fulfil the Order. Notwithstanding the foregoing, it is understood and agreed that Y Soft shall be entitled to assign the Order to other companies of the Y Soft group of companies within the meaning of Section 71 et seq. and 79 et seq. (for companies acting in consent pursuant to Section 78) of Act No. 90/2012 Coll., as amended (the “Business Corporations Act”).
2.6 The Seller understands and agrees that Y Soft hereby reserves the right to terminate negotiations regarding any pending contract with the Seller at any time and for any reason, even at a point when it might seem highly probable that the agreement would be consummated.
 

3. Delivery

3.1 The delivery date, delivery terms, shipping mode, and dispatch or delivery location are as stated in the Order, and international shipments are governed by INCOTERMS 2010. Unless the Order states otherwise, the shipping mode of the ordered Products is freight prepaid for domestic supplies and FCA INCOTERMS 2010 for international shipments. Y Soft will not accept collect or COD freight shipments.
3.2 The Seller must deliver the Product(s) on the delivery date or within the lead times to the delivery location stated in the Order. The Seller must immediately notify Y Soft of any circumstances that may delay the delivery; however, doing so does not release the Seller from any responsibility for on-time delivery. Each delay in delivery entitles Y Soft to cancel the Order and withdraw from the purchase contract without any liability of Y Soft for any damage or costs incurred by the Seller. Y Soft's withdrawal from the purchase contract does not affect the Seller's liability for all damages, including unlimited consequential damages, incurred by Y Soft as a result of delay in delivery.
3.3 Premature or partial deliveries are allowed only if permission is granted by Y Soft in writing, otherwise the Products may be returned to the Seller at the Seller's cost. Unless Y Soft specifies the exact quantity of the Products to be delivered before the Seller delivers the Products to the specified delivery location, the deviation between the quantity specified by the Order and the delivered quantity shall not exceed 3%. A quantity of the delivered Products that constitutes a deviation exceeding 3% is deemed to be refused by Y Soft, unless explicitly accepted in writing. 
3.4 The Seller fulfils its obligation to deliver the Product(s) only when the Product(s) have been made available at the agreed delivery location. The risk of loss or accidental damage to the Product(s) passes to Y Soft upon their delivery in accordance with the agreed delivery terms.
3.5 All Products shall be packed and labelled for transport in compliance with the requirements of applicable laws unless Y Soft provides specific labelling instructions. Apart from any legal requirements, particularly with respect to tax law, each invoice, delivery note, and/or packing list shall comply with applicable laws and shall contain the Order number, all data related to Products itemized according to the Order (i.e. Product descriptions; for international shipments, the number of units/quantity of packages delivered; and, if applicable, Product part numbers and Order confirmation number).
3.6 The Product delivery must include any and all necessary technical documentation such as certificates, manuals, processing and storage instructions, operation and maintenance provisions as stated in the Order or as may be required for the use of the Product(s), regardless of the form of such documentation (hardcopy or electronic). When Y Soft requests or orders semiconductor Products or components (for example, chips) or similar technical equipment that requires assembly or that must meet performance specifications, the Seller shall, at Y Soft's request, also provide drawings and/or samples to Y Soft.
 

4. Ownership, Reservation of Rights, Assignment

4.1 By taking possession of or accepting delivery of Products Y Soft orders, Y Soft acquires full ownership of (title to) those Products. Prolonged or extended reservation of title by the Seller is excluded. Y Soft is not obliged to accept Products from the Seller that show any defects or unfinished work. The provisions of Section 2605 Par. 1 of the Civil Code shall not apply.
4.2 The Seller is not entitled to assign or pledge to any third party any receivable from Y Soft under an existing contract. Y Soft is entitled to set off any receivable due to the Seller as well as payable in the future, against the Seller regardless of whether the Seller's receivable is due or shall be payable in the future. Y Soft’s right to withhold any payment or set off any amount may not be restricted. Y Soft is also entitled to set off any receivable against the Seller that could be, under Section 1987, Sec. 2 of the Civil Code, considered uncertain or vague. The provision of Section 1987 Par. 2 of the Civil Code shall not apply.
 

5. Invoicing and payment terms 

5.1 Unless agreed otherwise, the purchase price indicated in the Order shall include packaging, all taxes (excluding any value added tax, if applicable), fees, duties, delivery charges (in accordance with the agreed delivery terms), and any other charges applicable to deliveries. It also covers all services provided by the Seller under such Order.
5.2 If the agreement involves performance of work and if the work is to be completed and delivered in parts, the right of the Seller to receive payment from Y Soft for each part of the work within the meaning of Section 2610, Sec. 2 of the Civil Code is excluded. The work is mature upon its completion and delivery without defects, unless expressly agreed otherwise.
5.3 The Seller shall send each invoice to the Y Soft address indicated in the Order.
5.4 Y Soft shall make all payments by wire transfer to the Seller’s bank account by the due date or according to the payment terms stated by the Order. The Seller shall deliver to Y Soft an appropriate invoice (or tax invoice, as the case may be) with bank account payment details meeting the requirements of a tax document pursuant to applicable law. The currency of each invoice shall be CZK, USD, or EUR, as appropriate. The date of receipt shall be the day the amount due is deducted from Y Soft's bank account. Each Party shall bear its own respective bank charges.
5.5 All amounts Y Soft does not pay on time will bear a default interest rate of 0.02% per day, calculated from the start day of the delay until the Seller receives payment. If Y Soft defaults on a payment, the default interest rate (0.02%) shall cover all claims related to Y Soft’s default.
5.6 Payments by Y Soft shall not mean or be deemed as acceptance of delivery.
5.7 If either Party makes a claim against the other Party arising from or in connection with an Order, a creditor’s right to recover related costs from such a claim at a flat rate, as set out in Section 3 of the Government Decree No. 351/2013 as amended or in another legislation involving this Government Decree is excluded.
 

6. Warranty, inspection and guarantee

6.1 The Seller is liable for holding all sufficient rights and titles (including rights to resell or sublicense) to the Product(s) in order to deliver and sell the Product(s) to Y Soft and represents that by the delivery of the Product(s) to Y Soft the Seller does not infringe any patent, trademark, copyright, trade secret, know-how, or any other intellectual property rights of third parties (hereinafter referred to as having a “Defect in Title”).
6.2 Liability for defective performance, namely regarding Defects in Title as well as defects in material and workmanship, is governed by the law of the Czech Republic. The Seller guarantees that all Products delivered to Y Soft conform in design, construction, efficiency, and technology of production with the latest state of the art and with the Order and are substantially free from defects in material and workmanship, Epidemic Failure (as defined in Section 6.3 below), and are performed in accordance with specifications and approved samples and available for the intended or agreed use either for the period stated in the Order (which prevails over any warranty period indicated in the Seller’s warranty certificate) (the “Warranty Period”). Unless otherwise expressly agreed in the purchase agreement between the Parties or in the Order, the Warranty Period is 24 months from take-over by Y Soft. Periods shorter than the 24-month warranty indicated on the Seller’s warranty certificate must be confirmed by Y Soft in writing in order to be valid. If Y Soft detects any defects of the delivered Product(s) and notifies the Seller of these defects within the Warranty Period, the Seller is obliged to follow the procedure in Section 6.6 below. For Products that are intended to be incorporated in Y Soft's products (and such intention is indicated in the Order or otherwise presumed by the Seller) the Warranty Period starts on the date Y Soft incorporates the Products, provided that such incorporation takes place no later than twelve (12) months from the date Y Soft takes over the Products. The Seller further guarantees that the Products satisfy statutory provisions relating to inter alia health, safety, and the environment valid in the country of delivery.
6.3 Epidemic Failure. If a delivered Product is defective due to a specific defect in workmanship or material or the Product does not conform with the specifications, and such defect or non-conformance has occurred repeatedly in at least three per cent (3%) of Products delivered by the Seller during a period of six (6) consecutive months, such failure shall be deemed an “Epidemic Failure,” in which case the Seller shall provide Y Soft with the remedies set forth in Section 6.6 herein.
6.4 Y Soft's obligation to inspect delivered Products is limited mainly to checking that the type and quantity of Products are correct. Every inspection and notification of defects by Y Soft within the Warranty Period shall be deemed as having been made in time, irrespective of when the defect was actually detected or could have been detected; Y Soft is not bound to a specific notice period.
6.5 In the event of rejecting Products, Y Soft shall inform the Seller as soon as possible, stating the reason that led to the rejection. It is solely at Y Soft’s discretion whether Y Soft returns the rejected Products to the Seller or retains the Products until the Seller provides Y Soft with further instructions as to the disposal of the rejected Products within five (5) working days.
6.6 If the Products do not conform with the requirements as stipulated in Sections 6.1 and 6.2 of this Article, Y Soft may, at its discretion, require that defective Products be repaired or replaced, or that missing part(s) be delivered, without prejudice to Y Soft’s other rights under these Purchase Terms or under applicable law, including but not limited to the right to cancel the Order and the right to claim proprietary and non-proprietary damages. This provision also applies to deliveries subjected to inspection by sample tests. The Seller may refuse the type of remedy chosen by Y Soft only if the remedy is connected with unreasonable costs incurred.
6.7 After a defect has been repaired, the Warranty Period shall be automatically extended by a time period from the date of the Y Soft's complaint until the repaired Product is delivered to Y Soft. If the defective Product is replaced with a new one, the new Warranty Period starts from delivery of the replacement Product.
 

7. Confidentiality provisions

7.1 All data and information obtained from Y Soft whether verbally or in writing shall be applied by the Seller only in order to execute the Order(s). The Seller shall protect such materials from unauthorized access or use. Subject to any further rights Y Soft may demand that such materials be returned if the Seller breaches these duties.
7.2 All data and information shall be kept in confidence by the Seller unless such information is already general knowledge or has been lawfully obtained by the Seller, and the Seller shall not refer thereto, nor to the fact that the Seller supplies or has supplied Y Soft, in any publications, advertisements, or other verbal or written form unless with Y Soft’s prior written consent. 
7.3 If Y Soft agrees to subcontract an Order to a third party, the Seller is obliged to adequately bind such third party involved in performance of the Order for Y Soft. Such third party shall agree to this confidentiality duty in writing before the Order is subcontracted.
 

8. Liability, Termination of the Contract

8.1 The Seller shall hold Y Soft harmless and indemnified from and against all claims of any third party for Defect in Title.
8.2 If the Seller is late in delivery of Products, the Seller is obliged to pay Y Soft a contractual penalty in the amount of 0.05 % of the value of the ordered Products for each day of delay. The payment of this contractual penalty by the Seller does not affect Y Soft's right to claim damages in the scope to which any inflicted damage exceeds the amount of the above contractual penalty as well as Y Soft's right to withdraw from such delayed Order. This contractual penalty is due and payable immediately and Y Soft is entitled to set off the claim to its payment against the Seller’s claim to payment for the price of the delivered and invoiced Products or another Seller’s claim.
8.3 If the Product has defects that are known to the Seller, the Seller is obliged to inform Y Soft of such when entering into a contract or before delivering the Product and to provide a reasonable discount to the purchase price for these defects. If the Seller does not inform Y Soft of defects in the Product or does not give Y Soft a reasonable discount on the purchase price, the Seller shall be liable for performance of the defective product.
8.4 The Seller is also liable for performance of defective Products regarding defects that are detected upon delivery or inspection after the risk of loss or damage to the Product passed to Y Soft, as well as for hidden defects.
8.5 Beyond the warranty obligations the Seller shall be liable for any breach of contract, statutory duty, pre-contractual, or other agreed representations or guarantees, as well as for tortuous acts. The Seller also takes full responsibility for performance of its sub-suppliers, regardless of whether such third party agreed to execute a certain activity independently.
8.6 If the Seller uses a sub-supplier or another third party during fulfilment of the Order, the Seller shall reimburse damages caused by the third party to Y Soft to the same extent as if it were caused by the Seller, regardless of whether such third party agreed to execute a certain activity independently.
8.7 If the Seller ceases to make payments, or if an interim insolvency administrator is appointed to maintain the Seller's asset or insolvency proceedings were initiated against the Seller’s assets, Y Soft may withdraw from any Order and immediately terminate the contract with the Seller.
8.8 Y Soft has the right to be reimbursed by the Seller for costs Y Soft efficiently incurred in exercising its rights regarding defective performance. If the defect is covered by the Warranty Period, Y Soft may claim the right to recover such costs within six months from the expiration of the Warranty Period. In other cases Y Soft may do so within the statutory period of limitation.
 

9. Force majeure

9.1 The following events shall be considered to be cases of force majeure and neither Party shall be liable to the other for its failure to perform its obligation hereunder during a period in which its performance is delayed due to a force majeure event: natural catastrophe; war; invasion; acts of foreign military forces or enemy units (irrespective of whether war has been declared or not); civil war, rebellions, revolutions, uprisings, or due to a military or other assumption of power through expropriation by the power of any state authority, commission, or other relevant body or by a strike, blockades, or lockout. The Seller shall inform Y Soft about a delay due to force majeure immediately and include written documentation of the circumstance in question. Nevertheless, when a delay due to a force majeure event lasts for more than fourteen (14) days Y Soft has the right to immediately cancel the Order and withdraw from the contract.
 

10. Export restrictions

10.1 The Seller shall comply with all applicable export control, customs and foreign trade regulations (“Foreign Trade Regulations”).
10.2 The Seller undertakes to notify Y Soft of any licensing requirements for exports of products imposed by the European Union and/or U.S. export and customs regulations as well as the export and customs regulations of the country of origin. The Seller also agrees to inform Y Soft whether the supplied Product or technology is US controlled and/or controlled under export control laws of the country of origin, and if so, what the export control classification number (ECCN) is.
10.3 The Seller shall be liable for any expenses and/or damages incurred by Y Soft due to any breach of the obligations according to 10.1, if the Seller is responsible for such breach.
 

11. Governing law and Disputes

11.1 These Purchase Terms as well as the Order and purchase contract concluded between the Parties based on the Order are governed and applied according to the laws of Czech Republic. The UN Convention on International Sale of Goods (“CISG”) shall not apply.
11.2 All disputes between Y Soft and the Seller that arise from an Order or the purchase contract concluded between the Parties based on the Order, if not amicably settled within 30 days, will be submitted to the courts of the Czech Republic and in such case the competent court of Y Soft. By accepting Y Soft's Order, the Seller approves the jurisdiction of the Czech courts as well as the jurisdiction  of the competent court of Y Soft to adjudicate such dispute.
 

12. Additional and Final Provisions

12.1 Waiver of any rights by Y Soft or non-exercise of any rights resulting from a breach of any obligation of the Seller shall not result in the waiver of any rights related to the breach of contract or applicable laws.
12.2 If any provision of these Purchase Terms is null and void, invalid or unenforceable, the validity of the remaining provisions or the contract concluded on the basis of these conditions will not be affected.
12.3 Any departures from and/or amendments to these Purchase Terms must be in writing in order to be valid. This also applies to any waiver of debt from this agreement. Insofar as the provisions of these Purchase Terms do not regulate certain matters, relevant statutory provisions shall apply.
12.4 The Purchase Terms as well as Orders or other documents cause only those legal consequences that are expressed in them, as well as legal consequences arising from the law.
12.5 Unless the Parties agree otherwise, compensation for all damage caused in connection with the Order shall be monetary.
12.6 Y Soft has a right against the Seller for damages incurred through failure to satisfy a monetary debt, even if the damage is covered by default interest. The provision of Section 1971 of the Civil Code shall not apply.
12.7 Y Soft's duty to reimburse the Seller for damage that was not reasonably foreseeable at the time of concluding an agreement or any Order is excluded. The duty of Y Soft to compensate non-proprietary loss to the Seller under Section 2971 of the Civil Code is also excluded.
12.8 The Parties declare that the provisions of Sections 1799 and 1800 of the Civil Code regarding adhesion contracts are excluded as regards the Parties’ relationship. Clauses in a framework agreement or a partial agreement, resp. in an Order, that refer to the Purchase Terms or other documents are valid, even if the Seller was not informed of them and their meaning or it is not proven that the Seller should have known the meaning of the clauses. Clauses in a framework agreement or a partial agreement, resp. in an Order, in the Purchase Terms or other documents that are particularly disadvantageous to the Seller without a good reason are also valid.
12.9 The Seller undertakes that it will comply with all obligations related to the Products regarding their creditors, so that Y Soft would not acquire any obligation, which could be connected with the Products, together with the right of ownership to the Products within the meaning of Section 1106 of the Civil Code. If Y Soft acquires such an obligation, an obligation will arise to the Seller, namely to satisfy the respective debt to the creditor in full within 15 days from the delivery of Y Soft's notice to the Seller or within this period to arrange otherwise with the creditor so that Y Soft does not have to satisfy the respective debt to the creditor. Seller's responsibility for potential damages is not affected.
12.10 The Seller assumes the risk associated with any change of circumstances within the meaning of Section 1765 Paragraph 2 of the Civil Code and, if the contract is for performance of work, also Section 2620 Paragraph 2 of the Civil Code. Section 1764 of the Civil Code shall not apply.
12.11 The right of the Seller to invoke for the Seller’s benefit the data records regarding legal proceedings and other matters in Y Soft’s electronic ordering system, as well as the content and exposure time of documents relating to legal matters that occur during Y Soft’s normal business operations are excluded.
12.12 All rights and claims arising under these Purchase Terms that are time barred do not stop or are not interrupted by any out-of-court settlement negotiations within the meaning of Section 647 of the Civil Code.
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