THE PURCHASER'S ATTENTION IS DRAWN IN PARTICULAR TO CLAUSES 2.3, 2.5, 4.3, 5.6, 10, 16, 21 and 26.4. THE PURCHASER IS ALSO ASKED TO READ THESE TERMS AND CONDITIONS IN FULL.
1.1. In these terms and conditions, unless the context otherwise requires, the following words and expressions shall have the following meanings:
"Agreement" means the Offer/Quotation, the Supplier's acceptance of an order ("Order Acknowledgement") and these terms and conditions, and any annexes to the Offer/Quotation;
"Delivery, Installation, Commissioning Schedule" means the schedule agreed between the Parties, setting out the dates for delivery by the Supplier of the Goods to the Site and (if applicable) the dates for their installation, and commissioning stated in the Agreement;
"Effective Date" means the date of the Order Acknowledgment;
"Enhanced Warranty Period" means the Supplier's extended warranty (which, if applicable, is referred to in the Offer/Quotation), and which commences on the date the Standard Warranty Period expires;
"Force Majeure Event" or "Force Majeure" means any circumstance beyond the affected Party's reasonable control including, but not limited to, the following:
(a) an act of God
(b) nuclear, chemical or biological contamination;
(c) strike, labor disputes, lockout or other industrial disturbance;
(d) act of war whether declared or undeclared, civil war, armed conflict or terrorism;
(e) blockade, revolution, riot, insurrection, civil commotion, public demonstration;
(f) sabotage or act of vandalism;
(g) lightning, fire, storm, flood, earthquake, accumulation of snow or ice or adverse weather conditions;
(h) lack of water arising from weather or environmental issues;
(i) pressure waves caused by devices travelling at supersonic speeds;
(j) epidemic or pandemic;
(k) any law or action taken by a government or public authority, including without limitation imposing an export or import restriction, quota, prohibition or failing to grant a necessary license or consent;
(l) total or partial collapse of a building, explosion or accident;
(m) non-performance by suppliers or sub-contractors of the Supplier; and
(n) interruption or failure of a utility service, whether (without limitation) at the Site, the location of the Parties, transport routes, the place of manufacture of the Goods or otherwise and regardless of whether it affects a Party directly or affects any supplier, agent, sub-contractor, consultant or other third party on whom the Party relies on for the performance of its obligations under the Agreement, which results in or causes failure by the affected Party to perform its obligations under the Agreement to the extent that the event or circumstance could not have been prevented by the exercise of reasonable skill and care by the affected Party;
"Goods" means the goods and/or services specified or provided in the Specification and the Agreement;
"INCOTERMS" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Agreement is made;
"Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Invoice" means a list of goods sent or services provided, with a statement of the sum due for these, under the Agreement.
"Last Actual Delivery Date" means the actual date of delivery by the Supplier of the last Unit to be delivered under the Agreement;
"Last Delivery Date" means the date identifiable from the Delivery and Installation Schedule as being the date for delivery of the last Unit to be delivered under the Agreement;
"Material Defect" means a defect in the Goods such that the Goods do not materially meet the Specification, or otherwise comply with the Agreement but excluding any defects caused or contributed to by the Purchaser, its agents, sub-contractors or otherwise, the Purchaser's Design or anyone for whom the Purchaser is responsible;
"Offer/Quotation" means the document so titled to which these terms and conditions are attached or referred to containing (if applicable) specific details in relation to the Project;
"Party" and "Parties" means the Supplier and/or the Purchaser, as the context so requires;
"Price" means the sum set out in the Agreement and any other sums payable by the Purchaser to the Supplier in accordance with the Agreement;
"Project" means the Purchaser's project in respect of which the Goods are being supplied by the Supplier under the Agreement, the details of which (if applicable) are set out in the Agreement;
"Purchaser" means the person or legal entity whose order for Goods is accepted by the Supplier;
"Purchaser's Agent means an agent, representative or otherwise of the Purchaser whose name is stated in the Agreement as the Purchaser's agent;
"Purchaser Design" means the design and configuration of the Project including any integration of the design of the Goods into the Project, but excluding the design of the Goods.
"Relevant Event" has the meaning given to it in clause 7.2;
"Relevant Matter" has the meaning given to it in clause 7.1;
"Scheduled Dates" means the Scheduled Delivery Dates and/or the Scheduled Installation, and/or Commissioning Dates as the context so requires;
"Scheduled Delivery Dates" means the dates, as specified in the Delivery, Installation, and/or Commissioning Schedule, for delivery by the Supplier of the Goods to the Site and (if applicable, their installation) as adjusted from time to time in accordance with the Agreement;
"Scheduled Installation Dates" means the dates, as specified in the Delivery, Installation, and/or Commissioning Schedule, for installation of the Goods on the Site by the Supplier as adjusted from time to time in accordance with the Agreement;
"Site" means the site or location as specified in the Offer/Quotation to which the Goods are to be delivered by the Supplier in accordance with the Agreement;
"Specification" means the specifications and all other data sheets as set out in the technical submittal or schedule of information or equipment set out in the Supplier's Offer/Quotation;
"Standard Warranty Period" means the Supplier's 1 year warranty, namely, the 1 year period commencing on the Last Actual Delivery Date and expiring 1 year later;
"Supplier means Woods Air Movement Ltd.;
"Unit" means an item of equipment to be delivered and (if applicable) installed by the Supplier;
"Variation Offer has the meaning given to it in clause 7.3;
"Warranty" means the Supplier's warranty to the Purchaser to rectify Material Defect(s) under clause 10;
"Working Day" means any business day (other than a Saturday, Sunday or United States federal holiday).
1.2. In the Agreement:
1.2.1. headings have been used for convenience only and shall not affect the interpretation of the Agreement;
1.2.2. words importing any particular gender include all other genders;
1.2.3. words importing the singular shall include the plural and vice versa;
1.2.4. a reference to any Party shall include that Party's personal representatives, successors and permitted assigns;
1.2.5. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.2.6. a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
1.2.7. a reference to the Agreement or to any other agreement or document referred to in the Agreement is a reference to the Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of the Agreement) from time to time;
1.2.8. any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, phrase or term preceding those terms.
1.3. To the extent that there is any conflict or ambiguity in the terms of the Agreement the following descending order of precedence shall apply:
1.3.1. the Offer/Quotation (excluding any annexes and terms and conditions);
1.3.2. annexes to the Offer/Quotation; and
1.3.3. these terms and conditions.
2.1. The Offer/Quotation is given on the basis that the Agreement will not come into existence until the Supplier accepts the Purchaser's No order submitted by the Purchaser shall be deemed to be accepted by the Supplier until an Order Acknowledgment is sent to the Purchaser at which point the Agreement will be binding on the Parties from and including the Effective Date.
2.2. Any Offer/Quotation is valid for a period of 30 days only from its date, provided that the Supplier has not previously withdrawn it prior to its acceptance.
2.3. The Supplier's employees or agents are not authorized to make any representations concerning the Goods unless otherwise confirmed in writing by a director of the Supplier or senior manager of the Supplier who is authorized by a Director of the Supplier. In entering into the Agreement, the Purchaser acknowledges and confirms that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
2.4. Any advice or recommendation given by the Supplier or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Supplier is followed or acted upon entirely at the Purchaser's own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, tender, invoice or other document or information issued by the Supplier shall be subject to correction without any liability (including for negligence or breach of any statutory implied warranties) on the part of the Supplier, provided always that nothing in this clause shall exclude or limit liability where such exclusion or limitation would be contrary to any law.
2.6. The Supplier will procure, manufacture, supply and (if applicable) install and/or commission the Goods in accordance with the Agreement.
2.7. The Supplier shall:
2.7.1. supply the Goods to the Purchaser in accordance with the Specification and, where included in the Agreement, install and/or commission those Goods at the Site in accordance with the Specification;
2.7.2. not make any change to the Specification or the manufacturing process in relation to the Goods which is detrimental to or compromises the ability of the Supplier to comply with its obligations under the Agreement without:
(a) first notifying the Purchaser of its intention to implement such change and in such notification reporting to the Purchaser as to any consequences which will follow such change being implemented;
(b) giving the Purchaser the opportunity to make representations to the Supplier within 10 (ten) Working Days of receipt by the Purchaser of such notice; and
(c) obtaining written approval for such change from the Purchaser (such approval not to be unreasonably withheld or delayed) and such approval shall be deemed to have been given if no representations are received from the Purchaser within the period specified in clause 2.7.2(b).
2.8. The Purchaser shall be responsible for ensuring the accuracy of any information (including any information provided by it that is included in any specification in any way related to the Agreement) submitted by it to the Supplier and for giving the Supplier any necessary information relating to the Goods within a sufficient time to enable the Supplier to perform the Agreement in accordance with its terms. If the Supplier is unable to proceed with the Agreement forthwith the Supplier shall be entitled to amend the Price to cover any increase in cost, which is incurred after acceptance of the Offer/Quotation and before receipt of the necessary information and to change the Scheduled Dates provided always that the Supplier acts reasonably when doing so.
2.9. The Supplier reserves the right to make any changes to the Specification of the Goods, which are required in order for the Supplier to conform with any applicable legal requirements, or where the Goods are supplied to the Supplier's specification, which do not materially affect their quality or performance.
2.10. The quantity, quality and description of the Goods and any Specification for them shall be as set out in the Order Acknowledgment or any document attached thereto.
2.11. The descriptions and illustrations contained in the Supplier's catalogues, price lists and other advertisement matter are intended merely to present a general idea of the goods described, are subject to revision without notice, and shall not form part of any Agreement unless specifically incorporated by reference.
2.12. Where a Purchaser's Agent is stated in the Agreement as having been appointed by the Purchaser then, subject to any instruction to the contrary from the Purchaser, the Supplier shall be entitled to treat any exercise or discharge of the Purchaser's rights and obligations under the Agreement by the Purchaser's Agent as an exercise or discharge of those rights and obligations by the Purchaser. The Purchaser may remove or vary the extent of the Purchaser's Agent's authority at any time by giving prior written notice to the Supplier.
2.13. Without prejudice to the provisions contained in clause 7, any variation to this Agreement shall only be valid and therefore binding until any such variation is agreed in writing between the authorized representatives of the Purchaser and the Supplier.
3. EFFECTIVE DATE
The Agreement shall be effective from the Effective Date.
4. INSPECTION, TESTS AND PERFORMANCE
4.1. The Goods are, where practicable, submitted to the Supplier's standard tests before If the Purchaser requires tests other than those specified in the Agreement or the Purchaser or its representatives wish to be present during any tests additional charges will apply. If the Purchaser should fail to attend any tests or inspection within 7 days of being notified that the Goods are ready for testing or inspection then the tests will proceed in the Purchaser's absence and shall be deemed to have been made in the Purchaser's presence, or the inspection will be deemed to have taken place.
4.2. All performance figures supplied by the Supplier relating to the Goods are based upon its experience and represent the figures the Supplier expects to obtain in its laboratory to the relevant ISO 5801 test and tolerances detailed in the Supplier's technical literature.
4.3. The Purchaser is responsible for satisfying itself that the capacity of the Goods is sufficient for its purposes. The Supplier shall not be responsible for system design and shall not accept any liability including for negligence or breach of any statutory implied warranties (to the extent permitted by law) for the performance of the Goods in their final operating environment, whether or not details of the final operating environment have been made available to the Supplier.
5.1. The Supplier shall use its reasonable efforts to ensure that Goods are delivered and (if applicable) installed by the Scheduled Date(s). Time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Purchaser.
5.2. Where the Goods are to be delivered in installments, each delivery shall constitute a separate agreement and the Supplier's failure to deliver any one or more of the installments in accordance with the Agreement or any claim by the Purchaser in respect of any one or more installments shall not entitle the Purchaser to treat the Agreement as a whole as repudiated.
5.3. If the Purchaser fails to take delivery of the Goods, or fails to give the Supplier adequate delivery instructions to enable the Supplier to deliver, at the time stated for delivery (otherwise than by reason of a Force Majeure or by reason of the Supplier's fault) and the Supplier does not receive either confirmation that the Goods will be collected, or forwarding instructions sufficient to enable the Supplier to deliver the Goods, within 14 days after the date of notification of availability for collection or delivery then, without limiting any other right or remedy available to the Supplier, the Supplier may:
5.3.1. store the Goods, either at its works premises or elsewhere, until actual delivery and charge the Purchaser for the reasonable costs (including but not limited to storage fees, handling, demurrage and insurance) of storage; or
5.3.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the Price or charge the Purchaser for any shortfall below the Price.
5.4. In the event that the Supplier arranges carriage of the Goods it will at its option, repair or replace, free of charge, any of the Goods lost or damaged in transit provided that the Supplier is given written notification of such loss or damage within 3 Working Days to enable the Supplier to comply with the carrier's conditions regarding claims for loss or damage in transit or, where delivery is made by the Supplier's own transport, within 7 days after receipt of the Supplier's advice note. The Purchaser shall comply with all and any instructions on delivery and advice notes.
5.5. The location for delivery of the Goods for each Project shall be the Site as specified in the If there is no Project, the location for delivery shall be the Site as specified in the Agreement/Acknowledgement.
5.6. Subject to the terms of the Agreement:
5.6.1. The Purchaser shall permit the Supplier to deliver the Goods to the Site and install them (if so required under the Agreement) so that the Goods are capable of being delivered and installed (as the case may require) by the Scheduled Dates.
5.6.2. If the Supplier is unable for any reason to fulfill delivery of any of the Goods and/or their installation by the relevant Scheduled Dates then:
(a) where the reason for the Supplier being unable to fulfill delivery of the Goods by the Scheduled Dates relates to a matter which is the responsibility of the Supplier under the Agreement, the Parties shall, acting reasonably, seek to agree to amendments to the Delivery and Installation Schedule provided always that the Supplier shall not be treated as being in breach of the Agreement nor to have any liability to the Purchaser unless and until the Purchaser has given 21 Working Days' written notice to the Supplier, requiring that the relevant delivery and/or installation be made and the Supplier has not fulfilled the delivery and/or installation within that period; and
(b) in all other cases, the provisions of clause 7 shall apply.
5.6.3. The Purchaser shall be responsible for unloading and cranage, and/or other subsequent movement of the Goods on Site and for ensuring that each of the Supplier's delivery vehicles will be unloaded within one (1) hour of its arrival at the Site,
5.6.4. The Purchaser shall ensure that the Supplier is given:
(a) sufficient rights of access to the Site (and any adjoining areas) to fulfill its obligations under the Agreement; and
(b) an appropriate heavy duty paved surface on or adjacent to the Site (as applicable) from 2 (two) Working Days prior to the first of the Scheduled Delivery Dates until the Last Actual Delivery Date; and
(c) sufficient space is made available at the Site for the delivery and installation of the relevant Goods.
5.6.5. The Purchaser shall reimburse the Supplier on a full indemnity basis for any additional costs reasonably incurred as a result of a failure by the Purchaser to comply with the requirements of clause 6 including (but not limited to) any increased or additional storage, delivery costs or the costs of any resulting delay, to be assessed as a Relevant Matter to which the provisions of clause 7 shall apply.
5.6.6. Should the Supplier request, the Purchaser shall grant the Supplier access to the Site prior to the first Scheduled Delivery Date for the purpose of inspecting the Site and ensuring that the Site layout and any associated or existing works conform to the information provided to the Supplier and are suitable to enable the Supplier to comply with its obligations under the Agreement. The Purchaser shall ensure that suitably qualified and authorized personnel are available on Site to accompany the Supplier during any such inspection.
5.6.7. If, as a result of the Supplier’s inspection, matters are identified which prevent or have potential to impede or delay the Supplier's performance of its obligations under the Agreement which cannot be rectified by the date falling 15 Working Days prior to the first Scheduled Delivery Date:
(a) the dates in the Delivery and Installation Schedule will be postponed until such time as the matters have been rectified and the Supplier has been given not less than 5 (five) Working Days' notice by the Purchaser that the matters have been so rectified; and
(b) the matter shall be treated as a Relevant Matter and/or Relevant Event in accordance with clause 7.
5.6.8. No inspection of the Site (or decision not to inspect) by the Supplier shall:
(a) relieve the Purchaser from its obligation to ensure that the information provided by it is complete and accurate; or
(b) result in the Supplier bearing responsibility for the condition of the Site.
6. INSTALLATION AND COMMISSIONING
6.1. The Purchaser shall ensure that any individual the Supplier requests attends the Site or any other reasonable location so attends on the dates and times required by the Supplier and all facilities are provided as required by the Supplier and as set out in the Agreement or as the Supplier may reasonably require.
6.2. The Purchaser shall grant the Supplier unrestricted access to the Site both during and after the installation of the Goods for the purpose of installing, and commissioning the Goods and for enabling the Supplier to comply with its obligations under the Agreement.
6.3. Without prejudice to clauses 5.6.6 and 5.6.7, the Purchaser shall be responsible for ensuring that the Site and any existing works are sufficiently complete and otherwise suitable for the installation of the Goods.
7. RELEVANT MATTERS AND RELEVANT EVENTS
7.1. If the Supplier incurs costs, loss and/or expense for which it would not be reimbursed by the Price as a result any of the following (hereafter a "Relevant Matter"):
7.1.1. suspension of the Supplier's obligations under clause 3;
7.1.2. any agreed changes to the Specification or the Agreement or to the Purchaser's requirements or as a result of any valid instructions issued by the Purchaser after the Effective Date;
7.1.3. damage to any Goods caused on or after the date on which the risk in the Goods passed to the Purchaser pursuant to clause 11.1 save to the extent that such damage is caused by the Supplier;
7.1.4. an instruction from the Purchaser to search for or rectify a Material Defect where no Material Defect is found;
7.1.5. any test, inspection or other intervention by the Purchaser unless required as a result of the Supplier's breach of the Agreement;
7.1.6. the Supplier encountering physical conditions on the Site which:
(a) were not notified to it by the Purchaser prior to the Effective Date; or
(b) do not correspond with the information provided in the Agreement;
7.1.7. failure by the Purchaser to comply with any of its obligations under the Agreement;
7.1.8. any impediment, prevention or default, whether by act of omission of the Purchaser or any Purchaser's Agent or any other third Party employed by or working on behalf of the Purchaser or for whom the Purchaser is responsible;
7.1.9.the circumstances described in clauses 6.2 or 5.6.7 apply;
7.1.10. a Force Majeure Event; and
7.1.11. any delay caused by the Purchaser, any local authority or other third party in respect of the Project,
then the Price shall be adjusted to compensate the Supplier for any additional costs and expenses incurred as a result of the Relevant Matter.
7.2. If the Supplier is delayed, prevented or impeded in the performance of its obligations under the Agreement as a result of circumstances that are outside the control of the Supplier including, but not limited to, any Relevant Matter (hereafter a "Relevant Event") then the affected Scheduled Dates shall be extended by the amount of time of any period of delay so caused.
7.3. The Supplier shall notify the Purchaser of the occurrence of a Relevant Matter and/or a Relevant Event, describing the event or circumstance concerned, the likely effect of the event and steps being taken in mitigation The Supplier shall thereafter submit to the Purchaser its assessment of the extension to the Scheduled Dates and any adjustment to the Price (as applicable) required as a result of the Relevant Matter and/or Relevant Event (as applicable) (a "Variation Offer"). In the event that the Supplier has agreed to any variation to the Agreement which results in additional Goods being provided, then in addition to any additional cost, loss and/or expense, the Supplier shall be entitled to be paid for a contribution to its overheads and profits in respect of the additional Goods at the same rate as included in the Price, and shall include a claim therefor in a Variation Offer.
7.4. On receiving a Variation Offer, as soon as reasonably practicable and in any event within 2 (two) Working Days of receipt, the Purchaser shall either:
7.4.1. accept the Variation Offer, in which case the Supplier's assessment of the effect of the Relevant Matter and/or Relevant Event (as applicable) on the matters referred to in clauses 7.1 and/or 7.2 shall become binding on the Parties; or
7.4.2. issue a notice of objection stating the reasons for the objection and the Purchaser's alternative assessment of the Relevant Matter and/or Relevant Event (as applicable) on the matters referred to in clauses 7.1 and/or 7.2, in which case the Parties shall meet and seek to agree the assessment within 10 (ten) Working Days of the notice of In default of agreement, the dispute may be referred to dispute resolution.
7.5. If the Purchaser fails to respond to the Variation Offer within the period required under clause 7.4 then the Purchaser shall be deemed to have accepted the Variation Offer and clause 7.4.1 shall apply as if the Variation Offer had been accepted by the Purchaser.
8. PRICE AND PAYMENT
8.1. The price payable for the Goods by the Purchaser to the Supplier shall be the amount stated in the Agreement.
8.2. Unless otherwise agreed the Price may be increased to reflect increases in the cost to the Supplier due to any factor beyond its control by reason of the making or amendment after the date of the Offer/Quotation of any law or of any order, regulation, or by-law having the force of law. The Supplier shall also be entitled to increase the Price after the date of the Offer/Quotation and before its acceptance by the Purchaser to reflect other factors beyond the Supplier's control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of manufacture) and such increase shall reasonably reflect the costs incurred, provided always that the Supplier shall notify the Purchaser of any increase to the Price made pursuant to this The Purchaser shall have a period of 5 days from the date of notification to object to the increase, in which case the Parties shall negotiate the increase to the Price in good faith. If the Supplier receives no objection in the 5 day period, it shall be deemed that the Purchaser has accepted the increase.
8.3. In the event that any payment from the Purchaser under the Agreement is not made by the final date for payment of such sum as determined in accordance with this Agreement then the Supplier may (without prejudice to any other right or remedy) suspend performance of any or all of its obligations under the Agreement upon giving the Purchaser 7 days' prior notice in writing of its intention to do so. The Scheduled Dates and the contractual time limits for completion by the Supplier of any work directly or indirectly affected by the exercise of this right shall be extended by such period as is fair and reasonable including the period during which performance is suspended in pursuance of, or in consequence of the exercise of the right conferred by this clause 8.3.
8.4. The Supplier's right to suspend performance in accordance with clause 8.3 shall cease on the date the Purchaser makes payment in full of the amount due together with a payment equal to the Supplier's loss and/or expense incurred as a result including its reasonable costs of demobilization and remobilization.
8.5. If the Purchaser fails to pay any sum payable under or in connection with the Agreement (including debt and/or damages) then the Supplier shall be entitled to recover the legal costs, including attorney’s and paralegal fees, it incurs in bringing collection and/or court proceedings, with such costs being payable on an indemnity basis.
8.6. If the Supplier incurs extra cost between the date of the Agreement and the date of shipment of the Goods, or the date of completing any work, owing to delay in starting work or to suspension of the work due to the Purchaser's instructions or inadequacy or absence of instructions, rectification of errors in drawings or specifications prepared by the Purchaser, or other causes for which the Purchaser (or any other party employed, engaged or otherwise by the Purchaser) are responsible, that shall affect the performance of the Supplier's obligations under the Agreement, the Supplier shall be entitled to add the extra costs which the Supplier incurs to the Price.
8.7. Unless otherwise specified in the Offer/Quotation, the price for packing in accordance with the Supplier's current standards is not included in the Price.
8.8. If any samples submitted to the Purchaser are not returned to the Supplier within one month from the date of shipment then the Purchaser shall pay to the Supplier the market value of the sample. The amount payable shall be stated in an invoice of the Supplier and shall be payable by the Purchaser in accordance with the Agreement. Both parties agree that the market value charged is chargeable due to the legitimate interest of the Supplier in protecting its Intellectual Property Rights included within or forming part of the sample.
8.9. The Offer/Quotation only includes such Goods, accessories and work specified within the Offer/Quotation. Any additional items shall be charged in addition.
8.10. Unless stated in the Offer/Quotation, all prices are given by the Supplier on an ex works basis, and where the Supplier agrees to deliver the Goods otherwise than to its premises, (unless specifically agreed by the Supplier in writing) the Purchaser shall be liable to pay the Supplier's charges for transport, packing and insurance.
8.11. The Price is exclusive of any applicable taxes, duties, imposts or levies, which the Purchaser shall be additionally liable to pay to the Supplier.
8.12. The Purchaser shall not be permitted under any circumstances to delay payment of sums due under the Agreement due to a failure to obtain payment from a third party.
8.13. Subject to any special terms agreed in writing between the Purchaser and the Supplier, for Goods to be delivered within the United States, the Supplier may invoice the Purchaser for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Purchaser or the Purchaser wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Purchaser for the price at any time after the Supplier has notified the Purchaser that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods.
8.14. The Purchaser shall pay the Price and any other sums due to the Supplier within 30 days of the date of an invoice issued by the Supplier, and the Supplier shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the title in the Goods has not passed to the Purchaser. In the event of any disagreement with the invoice, the Purchaser shall communicate such disagreement within 10 working days of the invoice Payments shall not be delayed for eventual lack of payment from any other party. Receipts for payment will be issued only upon request.
8.15. Without prejudice to clause 8.3, if the Purchaser fails to make any payment on the due date then, without limiting any other right or remedy available to the Supplier, the Supplier may:
8.15.1. cancel the Agreement or suspend any further deliveries to the Purchaser;
8.15.2. revoke any credit facilities the Purchaser may have with the Supplier, and supply future goods on a cash only basis;
8.15.3. appropriate any payment made by the Purchaser to such of the Goods (or the goods supplied under any other Agreement between the Purchaser and the Supplier) as the Supplier may deem fit (notwithstanding any purported appropriation by the Purchaser); and
8.15.4. in the case of overdue payment, the Supplier has the right to charge interest on the overdue amounts. The Supplier may charge interest to the Purchaser on the amount overdue at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly, until payment is made in full, whether before or after judgment, without prejudice to any other rights the Supplier may have.
8.16. All payments shall be strictly net and the Purchaser shall not be entitled to make any set- off or counter claim against the sums due to the Supplier under the Agreement or any other Agreement between the Purchaser and the Supplier.
9. PAYMENT BY INSTALLMENTS
9.1. The dates for applications for payment or invoicing (both hereafter referred to as an "Invoice") of installments of the Price shall be as per the Agreement, provided that with regard to the final payment, an Invoice may be submitted within 7 days (rather than 30 days) of the completion of the work.
9.2. The Supplier shall submit to the Purchaser an Invoice for each installment of the Price and any other sums due under the Agreement (including in respect of a Relevant Matter), together with any supporting documents that are reasonably necessary to check the The Invoice and supporting documents (if any) shall specify the sum that the Supplier considers will become due on the payment due date, and the basis on which that sum is calculated.
9.3. When the Price is payable in installments, each payment due date shall be the date of each Invoice.
9.4. No later than 5 (five) days after payment becomes due, the Purchaser shall notify the Supplier of the sum that the Purchaser considers to have been due at the payment due date in respect of the payment and the basis on which that sum is calculated (a "Payment Notice").
9.5. The final date for payment shall be 30 (thirty) days after the date on which payment becomes If a Payment Notice in Default is served in accordance with clause 9.6 below, the final date for payment shall be postponed by the number of days between the date on which a Payment Notice should have been issued and the date on which a Payment Notice in Default is issued.
9.6. The Purchaser shall pay the Supplier the Notified Sum on or before the final date for payment of each Invoice. The Notified Sum shall be either (i) the sum specified in the relevant Payment Notice; or (ii) if a Payment Notice has not been served, the sum referred to in the relevant Invoice referred to in paragraph 2; or (iii) the sum specified in a Payment Notice in Default. If no valid Invoice was submitted in accordance with clause 9.2 the Supplier may at any time serve a payment notice in default stating the amount that it considers to be due at the relevant due date and the basis upon which that sum is calculated (the "Payment Notice in Default").
10. INSPECTION AND DEFECT RECTIFICATION AND WARRANTY
10.1. The Purchaser shall inspect the Goods immediately on delivery and shall within 5 (five) days from such delivery give notice to the Supplier of any matter or thing by reason thereof the Purchaser may allege that there are Material Defects in the Goods. If the Purchaser fails to give such notice the Goods shall be conclusively presumed to be in all respects in accordance with the Specification and the Agreement and free from any defect which would be apparent on reasonable examination of the Goods and the Purchaser shall, as between the Purchaser and the Supplier, be deemed to have accepted the Goods accordingly.
10.2. Should a Material Defect be identified during the inspection carried out pursuant to clause 1, the Supplier shall rectify any Material Defect as soon as reasonably practicable.
10.3. Supplier warrants to Purchaser that during the Standard Warranty Period or, if applicable, the Enhanced Warranty Period, the Goods will materially conform to the Specifications and will be free from Material Defects in material and workmanship ("the Warranty"). EXCEPT FOR THE WARRANTY SET FORTH HEREIN SUPPLIER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.4. Supplier shall not be liable for a breach of the Warranty unless (i) Purchaser gives written notice of the Material Defect, reasonably described, to Supplier within 5 (five) days of the time when Purchaser discovers or ought to have discovered the Material Defect; (ii) Supplier is given a reasonable opportunity after receiving the notice to examine such Goods and Purchaser (if requested to do so by Supplier) returns such Goods to Supplier's place of business at Supplier's cost for the examination to take place there; and (iii) Supplier reasonably verifies Purchaser's claim that the Goods are defective.
10.5. Supplier shall not be liable for a breach of the Warranty in the event of one or more of the following applying:
10.5.1. the Purchaser has previously employed a third party and/or used products from a manufacturer not approved by the Supplier to repair and/or service the Goods;
10.5.2. the Purchaser makes any further use of the relevant Goods after becoming aware of the relevant Material Defect;
10.5.3. the Purchaser has failed to make any payments due under the Agreement, including for the avoidance of doubt any payments of interest payable by the Purchaser;
10.5.4. the Material Defect arose because the Purchaser failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same and/or defects or deficiencies in the Goods were due to faulty handling by the Purchaser, improper storage by the Purchaser, incorrect erection, commissioning or mistakes in operation or maintenance, repair or interventions by persons other than the Supplier and without its prior authorization;
10.5.5. the Material Defect arose as a result of the Supplier following any drawing, design or specification supplied by the Purchaser;
10.5.6. the Material Defect arose as a result of willful or accidental damage, negligence, or abnormal storage or working conditions;
10.5.7. the Goods have been modified without the Supplier's consent;
10.5.8. the Purchaser has failed to provide all maintenance records for the defective Goods to allow the Supplier to assess a warranty claim;
10.5.9. the Purchaser has failed to provide the Supplier with sufficient access to investigate and rectify the Material Defect; or
10.5.10. the Supplier is unable to procure any required replacement parts from any third party which are necessary to rectify any Material Defect.
10.6. Subject to clause 10.4 and clause 10.5 above, with respect to any such Goods during the Standard Warranty Period or, if applicable, the Enhanced Warranty Period, Supplier shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Supplier so requests, Purchaser shall, at Supplier’s expense, return such Goods to Without prejudice to the conditions of the Warranty in clause 10.5, if the Agreement provides for the Enhanced Warranty Period to apply, then any claims made under the Warranty during the Enhanced Warranty Period shall only be honored by the Supplier if the Purchaser has a planned maintenance agreement with the Supplier in place at the time that the Purchaser notifies the Supplier of the Material Defect.
10.7. THE REMEDIES SET FORTH IN CLAUSE 10.6 SHALL BE THE PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND SUPPLIER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN CLAUSE 10.3.
11.1. No Offer which has been accepted by Purchaser may be cancelled by Purchaser except with Supplier’s prior written agreement and on terms that Purchase shall indemnify Supplier in full against all loss (including loss of profit), costs (including the cost of all labor, attorney’s fees, under-recovery of overheads and materials used), damages, charges and expenses incurred by Supplier as a result of cancellation.
12. RISK AND TITLE
12.1. Risk in the Goods, each Unit or other item of Goods shall pass to the Purchaser (so that the Purchaser is then responsible for all loss or deterioration of the Goods or for any damage occurring thereto):
12.1.1. In the case of Goods to be delivered to the Supplier's works premises, at the time when the Supplier notifies the Purchaser that the Goods are available for collection; or
12.1.2. In the case of Goods to be delivered to a location otherwise than the Supplier's works premises, from the date of delivery of the Goods, each Unit or item of Goods to Site, provided always that the Supplier shall be liable for any damage caused to the Goods through its negligence.
12.2. Title in the Goods shall not pass to the Purchaser until payment in full has been made for all sums due to the Supplier under the Agreement for the Goods and all other goods agreed to be sold by the Supplier to the Purchaser for which payment is then If any of the Goods is incorporated in or used as material for other goods before payment to the Supplier, the property in the whole of those goods shall be and remain with the Supplier until payment shall have been received or the other goods have been sold and all the Supplier's rights under the Agreement in the material shall extend to those other goods. The Supplier's rights to the material and/or the other goods is recognized in the Agreement and it is the intention of both parties that ownership of that material and/or goods shall vest in the Supplier.
12.3. Until such time as the title in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Supplier's fiduciary agent and bailee, and shall keep the Goods separate from the Purchaser's own goods and those of any third parties and, at the Purchaser's own cost, keep them properly stored, protected and insured and identified as the Supplier's property and the Purchaser shall not remove obscure or tamper with any identifying marks on the Goods, but the Purchaser may resell or use the Goods in the ordinary course of the Purchaser's business.
12.4. Until such time as the title in the Goods passes to the Purchaser (and provided the Goods are still in existence), the Supplier may at any time require the Purchaser to deliver up the Goods to the Supplier or the Supplier's agents and, if the Purchaser fail to do so forthwith, enter on any of the Purchaser's premises or the premises of any third party where the Goods are stored and repossess the Goods. Repossession of the Goods shall include detachment of the Goods from any other goods to which they may have been attached where such detachment can be achieved without damage to the other goods.
12.5. The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods, which remain the Supplier's property, but if the Purchaser do so all moneys owing by the Purchaser to the Supplier shall (without limiting any other right or remedy the Supplier may have) become immediately due and payable.
12.6. The Supplier will have the right to maintain an action against the Purchaser for any unpaid element of the Price for the Goods irrespective of whether property in the same has passed to the Purchaser.
Unless otherwise agreed between the Parties, the Purchaser shall be responsible for procuring all necessary consents, permissions or other authorizations required to enable the Purchaser to construct the Project and to permit the Supplier to deliver and (if applicable) install the Goods and perform its obligations under the Agreement, save in respect of any relevant import and export licenses for the Goods which shall be procured by the Supplier.
14.1. The Supplier shall only be responsible for the design of the Goods (excluding any Purchaser Design) where the Goods are manufactured and supplied by the Supplier and where the Supplier has been contracted to provide design services.
14.2. The Purchaser shall be responsible for the Purchaser Design.
14.3. The Supplier shall not by any act or omission be considered to have accepted the Purchaser’s Design as being suitable for the Purchaser’s requirements, nor shall the Supplier take responsibility for the adequacy or otherwise of the Purchaser's Design or the consequences of any deficiency therein including any delay, costs or defects that arise as a result.
The Purchaser shall not modify the Goods at any time without the prior knowledge and written consent of the Supplier. If the Supplier consents to such modification, the modification shall be entirely at the Purchaser's risk and the Supplier's consent shall not be deemed to be an approval or endorsement of the proposed modifications nor does the Supplier warrant that the proposed modifications will not be detrimental to the Goods or the Project.
16. COMPLIANCE WITH POLICIES
The Purchaser shall comply with the Supplier's policies (as may be varied from time to time) which shall be provided to the Supplier by the Purchaser and shall include policies in relation to Health, Safety and the Environment.
17. INTELLECTUAL PROPERTY
17.1. As between the Parties, the Supplier agrees that all copyright, design rights, patents and other forms of intellectual property rights in the Purchaser Design as contained in any drawings, plans, specifications and other data created by or for the Purchaser and supplied by or on behalf of the Purchaser to the Supplier shall at all times be and remain the exclusive property of the Purchaser. The Supplier shall have, and is hereby granted free of charge, a perpetual, non-exclusive right to use such copyright and other intellectual property rights solely for the purpose of and in connection with the performance of its obligations under the Agreement.
17.2. The Purchaser shall indemnify, defend and hold harmless the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit loss of reputation and all interest, penalties and legal costs, including attorney’s fees (calculated on an indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the use of the Purchaser's Design.
17.3. If a claim is made against the Purchaser that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from:
17.3.1. the use of a drawing, design, instruction or specification supplied by the Purchaser;
17.3.2. the use of a part or material supplied by the Purchaser or use of such parts or materials in a manner or for a purpose instructed by the Purchaser;
17.3.3. use of the Goods in another country not specified or disclosed to the Supplier,
the Supplier shall indemnify, defend and hold harmless the Purchaser against all reasonable loss, damages, costs and expenses awarded against or incurred by the Purchaser in connection with the claim, or paid or reasonably agreed to be paid by the Purchaser in settlement of the claim, provided that:
(a) the Purchaser gives the Supplier notice in writing of the claim or threatened action as soon as the Purchaser become aware of it;
(b) the Supplier is given full control of any proceedings or negotiations in connection with the claim;
(c) the Purchaser gives the Supplier all reasonable assistance for the purposes of any such proceedings or negotiations;
(d) except pursuant to a final award, the Purchaser shall not pay or accept the claim, or compromise any such proceedings without the Supplier's consent (which shall not be unreasonably withheld);
(e) the Purchaser shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Purchaser may have in relation to such infringement, and this indemnity shall not apply to the extent that the Purchaser recover any sums under any such policy or cover (which the Purchaser shall use its best efforts to do);
(f) the Supplier shall be entitled to the benefit of, and the Purchaser shall accordingly account to the Supplier for, all damages and costs (if any) awarded in the Purchaser's favor, which are payable by, or agreed with the Purchaser's consent (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
(g) without limiting any duty the Purchaser has at common law, the Supplier may require the Purchaser to take such steps as the Supplier may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Supplier is liable to indemnify the Purchaser under this clause.
17.4. The Purchaser warrants that any design, specification or instruction supplied by the Purchaser shall not cause the Supplier to infringe the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person.
17.5. The title to and all intellectual property rights in respect of any improvement, development or enhancement ("Improvement") made, developed or acquired by either party shall belong to that party, but the Supplier may use any Improvement, which is made, developed or acquired by the Purchaser, and any applicable intellectual property the Purchaser may have in such Improvements, for the Supplier's own purposes by way of a non-exclusive, royalty-free license without limit of time.
17.6. As between the Parties, the Purchaser agrees that all copyright, design rights, patents and other forms of intellectual property rights in the Goods including all drawings, method statements, plans, specifications and data concerning the same, shall at all times be and remain the exclusive property of the Supplier and no rights, interest or license in respect thereof is given to the Purchaser for any purpose.
18.1. Each Party shall keep in strict confidence all technical and commercial know how, specifications, processes, or initiatives which are of a confidential nature and have been disclosed to such Party (the "Receiving Party") by the other Party (the "Disclosing Party") or its agents and any other confidential information concerning the Disclosing Party's business or its products which the Receiving Party may obtain from the Disclosing Party or its agents.
18.2. The Receiving Party shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Receiving Party's obligations to the Disclosing Party and shall use reasonable efforts to ensure that such employees, agents and sub-contractors are subject to like obligations of confidentiality as bind the Receiving Party.
The Supplier shall be entitled to carry out its obligations under the Agreement through any agents or sub-contractors appointed by it in its absolute discretion.
20. FORCE MAJEURE
20.1. For so long as such circumstances prevail, neither Party shall be liable for any failure, suspension, or delay in the performance of its obligations under the Agreement to the extent that such failure or delay is caused by a Force Majeure Event.
20.2. If a Force Majeure Event continues for a period of more than 60 days, then the Supplier may terminate the Agreement by giving 30 days written notice to that effect.
Any dispute or difference between the parties of any kind whatsoever arising out of or in connection with the Agreement including any dispute or difference regarding its existence, validity or termination shall be exclusively referred to the American Arbitration Association for arbitration in Chicago, Illinois, pursuant to such Association’s Rules for Commercial Arbitration. The number of arbitrators shall be three (3). Any action for the breach of this Agreement asserted by Purchaser against Supplier must be commenced no later than one year after the event leading to the cause of action accrued. Purchaser hereby agrees to pay Supplier’s reasonable attorneys’ fees and costs of arbitration and/or litigation in the event Supplier exercises any right or remedy it may have to enforce the terms of this Agreement or to recover monies due and owing from Purchaser hereunder.
22. LIMITATION OF LIABILITY
22.1. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY PURCHASER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
22.2. IN NO EVENT SHALL SUPPLIER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TEN PERCENT (10%) OF THE AGREEMENT PRICE PAID TO SUPPLIER FOR THE GOODS SOLD HEREUNDER.
23.1.The Supplier may terminate the Agreement following a breach by the Purchaser of any of the terms of the Agreement by giving not less than 7 Working Days' written notice.
23.2. In the event that:
23.2.1. the Purchaser becomes insolvent;
23.2.2. the Purchaser makes a voluntary arrangement with the Purchaser's creditors or (being an individual or firm) become bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
23.2.3. the Purchaser suffers a lienholder to take possession, or a receiver is appointed, of any of the Purchaser's property or assets;
23.2.4. the Purchaser ceases, or threatens to cease, to carry on business;
23.2.5. the Supplier reasonably believes that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly; or
23.2.6. the Purchaser fails to make any payment due to the Supplier, whether under the Agreement or any other Agreement, on the due date,
the Supplier may terminate the Agreement immediately on written notice to the Purchaser.
23.3. If any of the events stated in this clause 23 occur, without limiting any other right or remedy available to the Supplier, the Supplier may terminate the Agreement or suspend any further deliveries under the Agreement without any liability to the Purchaser, and:
23.3.1. if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary; or
23.3.2. if the Goods have not been delivered then the Supplier shall be entitled to deal with the Goods in accordance with clause 5.3.1 or 5.3.2.
23.4. Termination of the Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Agreement that existed at or before the date of termination.
23.5. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
24.1. Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class mail or other next working day delivery service, commercial courier, or email.
24.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in the Agreement; if sent by pre-paid first class mail or other next working day delivery service, at 00 am on the second Working Day after mailing; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Working Day after transmission.
24.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
25. GROUP OF COMPANIES
25.1. The Supplier is a member of a group of companies and accordingly the Supplier may perform any of its obligations or exercise any of its rights under the Agreement by itself or through any other member of the group it is a part of, provided that any act or omission of any such other member shall be deemed to be the act or omission of the The Supplier also reserves the right to sub-contract the fulfilment of all or any part of the Agreement also provided that any act or omission of any such sub-contractor shall be deemed to be the act or omission of the Supplier.
26.1. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in the Agreement, but if there is any conflict between the provisions of Incoterms and the Agreement, the latter shall prevail.
26.2. The Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
26.3. Unless otherwise agreed in writing between the Purchaser and the Supplier, the Goods shall be delivered ex Works the United States air or sea port of shipment.
26.4. The Purchaser shall be responsible for arranging for testing and inspection of the Goods at the Supplier's premises before shipment. The Supplier shall have no liability (including for negligence or breach of any statutory implied warranties) for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit to the extent permitted by law.
26.5. Payment of all amounts due to the Supplier under the Agreement shall be made on presentation of the shipping documents and the Supplier's invoice(s) to the Purchaser's designated agent in the United States. If the Supplier is unable to deliver the Goods when ready, as a result of the Purchaser's or the Purchaser's agent's instructions or lack ofinstructions, payment shall be due in full upon presentation of the invoice(s) to the Purchaser's designated agent with written notification that the Goods are ready for shipment.
26.6. The Purchaser shall not offer the Goods for resale in any country notified by the Supplier to the Purchaser at or before the time the date of the Agreement, or sell the Goods to any person if the Purchaser or any officer, employee or otherwise knows or has reason to believe that that person intends to resell the Goods in any such country.
27. FURTHER ASSURANCE
Each Party shall from time to time upon the request of the other Party, execute any additional documents and do any other acts or things which may reasonably be required to implement the provisions or for the purpose of the Agreement.
If any provision of the Agreement is prohibited by law or judged to be unlawful or otherwise void and cannot be modified to give effect to the intentions of the Parties, the provision shall be ineffective to the extent of such invalidity or unenforceability and shall, to the extent required, be severed from the Agreement (as far as possible without modifying the remaining provisions of the Agreement) without affecting the validity or enforcement of the remaining provisions of the Agreement.
29. ASSIGNMENT AND THIRD PARTY RIGHTS
29.1. The Purchaser shall not assign, sub-contract or otherwise transfer all or any of its rights, interests or obligations under the Agreement without the prior written consent of the Any or all of the Supplier's right or obligations under the Agreement may be assigned, transferred or sub-contracted by the Supplier.
29.2. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or organization any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
During the term of this Agreement and until the expiration of any applicable statutes of limitation, whichever is later, Purchaser shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than $5 million with financially sound and reputable insurers. Upon Supplier's request, Purchaser shall provide Supplier with a certificate of insurance from Purchaser's insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Supplier as an additional insured. Purchaser shall provide Supplier with thirty (30) days' advance written notice in the event of a cancellation or material change in Purchaser's insurance policy. Except where prohibited by law, Purchaser shall require its insurer to waive all rights of subrogation against Supplier's insurers and Supplier.
Purchaser shall indemnify, defend and hold harmless Supplier and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers incurred by Indemnified Party arising out of, related to or resulting from any claim of a third party or Supplier arising out of or occurring in connection with the Goods purchased from Supplier or Purchaser's negligence, willful misconduct or breach of this Agreement. Purchaser shall not enter into any settlement without Supplier’s or Indemnified Party's prior written consent.
32. ENTIRE AGREEMENT AND GOVERNING LAW
32.1. The Agreement, together with the documents referred to in it, constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes, cancels and nullifies any previous agreement between the Parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.
32.2. Unless otherwise agreed in writing by both Parties the terms and conditions of the Supplier herein are the only terms and conditions upon which the Purchaser shall purchase the Goods to the exclusion of all other terms and conditions;
32.3. The Purchaser acknowledges and agrees that in entering into the Agreement, and the documents referred to in it, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether Party to the Agreement or not) other than as expressly set out in the Agreement.
32.4. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the State of Illinois, United States, without giving effect to its conflicts-of-law principles. Supplier and Purchaser agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
1. Offer and Acceptance: Unless additional or different terms are part of a written agreement which has been negotiated between the parties and the parties expressly agreed may override these terms in the event of a conflict, this Purchase Order, including these terms and conditions, supersedes all other agreements, oral or written and all other communications between the parties suggesting additional or different terms, and represents the final and complete understanding of the parties; and any proposal for additional or different terms, or any attempt by Seller to vary any of the terms hereof, is hereby objected to and rejected, this offer being expressly limited to the terms hereof. No terms of any document or forms submitted by Seller shall be effective to alter or add to the terms and conditions contained in this Purchase Order.
2. Invoice and Shipping Instructions: All invoices, bills of lading, packing slips and packages must include the Seller’s name, Buyer’s sold to/ship to addresses, invoice number and date, Purchase Order number, Purchase Order line item number, product number and description, quantity shipped, price per unit, total price, currency, remit to address, and applicable shipping and handling charges. Invoices (in duplicate) and shipping documents for each shipment on this Purchase Order must be e-mailed to Buyer's accounting department firstname.lastname@example.org or by mail to Buyer’s Accounts Payable department” not later than one day following shipment. Incomplete or incorrect invoices may be returned to Seller. Goods received not covered by proper documentation will be held at Seller's risk and expense. Buyer's count shall be accepted as final on any shipments not accompanied by a packing list. Seller shall package all products in appropriately to permit safe transportation and handling. All products shall be shipped in accordance with Buyer’s instructions included in the Purchase Order. In the event shipping requirements are not specified in the Purchase Order, Seller shall contact Buyer’s logistics department for instructions.
3. Title and Risk of Loss: Unless otherwise set forth on this Purchase Order, all products shall be delivered FCA (Incoterms) Seller’s facility. Title to the products shall pass from Seller to Buyer at the same point that risk of loss transfers from Seller to Buyer per the applicable Incoterm.
4. Prices and Payment: Goods and services will be delivered at the price(s) stated in the Purchase Order and may not be increased, however, Seller agrees that any price decrease in effect at the time of shipment or performance shall apply. No additional charges shall be allowed for packaging or storage. Seller warrants that the prices being paid by Buyer are not affected by any collusion or any other anti-competitive activity. Payment terms shall be as stated in the Purchase Order and the days shall be counted from the receipt of correct goods or services or receipt of correct invoice by Buyer, whichever is later. Buyer’s payment of an invoice does not constitute its acceptance of the goods or services. Buyer’s payments may be adjusted for Seller’s errors, defects or non-compliance with the Purchase Order, including these terms. Buyer reserves the right to set-off any amount owing at any time to Seller or any affiliate of Seller. Buyer is not responsible for paying any invoice submitted by Seller more than ninety (90) days after goods or services have been delivered.
5. Taxes: Seller’s price includes all taxes, fees and/or duties applicable to the goods or services purchased under this Purchase Order. Any applicable sales, use or Federal excise tax that Buyer is legally obligated to pay shall be shown separately on the invoice.
6. Delivery: Time is of the essence and all deliveries shall be made strictly in accordance with the Purchase Order. Seller shall promptly notify Buyer verbally, with written confirmation, of any anticipated or actual delay in delivery. Seller shall, at its expense, avoid or minimize any delay to the maximum extent possible by reasonable methods. Seller shall be responsible for all excess transportation charges arising from Seller’s failure to meet delivery dates, unless such failure is solely due to Buyer. If delivery of items or rendering of services is not completed by the time promised, the Buyer reserves the right, without liability and in addition to its other rights and remedies, to terminate this contract by notice effective when received by Seller, as to stated items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge the Seller with any loss incurred. Any provisions herein for delivery of articles or the rendering of services by installments shall not be construed as making the obligations of Seller severable. No substitutions for products shall be accepted unless advance written approval has been provided by an authorized representative of Buyer.
7. Warranties: Seller represents and warrants to Buyer that, in addition to all warranties expressed and implied by law, all products, goods and services covered by this Purchase Order: (a) conform to all of Buyer's specifications, drawings, descriptions, data and samples; (b) conform to all of the specifications, drawings, descriptions. data, and samples provided by Seller to Buyer; (c) are free from defects in design, workmanship and materials; (d) are fit for the use intended by Buyer; (e) comply with all applicable industry standards and guidelines; (f) comply with all applicable federal, state and local laws, orders, ordinances, regulations, and standards; and (g) do not infringe or encroach upon Buyer's or any third-party's personal, contractual or proprietary rights, including, without limitation, patents, trademarks, trade names, copyrights, rights of privacy, or trade secrets. All electrical components must be UL and CSA approved.
8. Rejection and Remedies: In the event Seller learns of any defect, deviation or non-conformance of goods or services applicable to the Purchase Order, whether or not delivered to Buyer, Seller must provide Buyer written notification within twenty-four (24) hours thereof. In addition to all available remedies, if any of the goods or services pursuant to this Purchase Order are found to be defective or otherwise not in conformity with the requirements of this Purchase Order, then Buyer may, at its option, at Seller’s risk, cost and expense: (a) hold such nonconforming goods pending Buyer’s determination to accept or reject any or all thereof; (b) reject and/or return all or any portion of such goods or services; (c) take such actions as may be required to cure all defects and/or bring the goods or services into conformity with all the requirements of the Purchase Order; (d) require Seller to replace, re-work or correct such goods or services or supply replacement parts; and/or (e) terminate the Purchase Order or any outstanding delivery of goods or services, without liability to Buyer. For any repairs or replacements, Seller shall, at its cost and expense, perform any tests requested by Buyer to verify conformance to the Purchase Order.
9. Seller’s indemnification of Buyer: (a) Seller agrees to indemnify, hold harmless and defend Buyer, its parent, subsidiaries and affiliated companies, employees, officers, directors, and agents and each of their predecessors, successors, and assigns, as well as the buyers and users of its goods, against all lawsuits, damages, losses, claims, liabilities, fines, judgments, settlements or penalties, including all attorney's fees and litigation costs, for i) claims arising from, relating to, or in connection with, the infringement of patents, (whether U.S. or foreign), copyrights, trademarks, misappropriation of trade secrets and unfair competition, ii) claims for personal injury, property damage or other damage arising out of, relating to, or in connection with, the use, possession, consumption, manufacture, fabrication or sale of the goods or services sold by Seller to Buyer, and iii) damages or expenses arising from, relating to, or in connection with, Seller's failure to comply with the terms of this Purchase Order or other agreements between Buyer and Seller. (b) Seller further agrees to indemnify, hold harmless and defend Buyer, its parent, subsidiaries and affiliated companies, employees, officers, directors and agents and each of their predecessors, successors, and assigns, against all lawsuits, damages, losses, expenses, claims, liabilities, fines, judgments, settlements or penalties, whether direct, consequential or otherwise, including all attorney's fees and litigation costs, arising from, relating to, or in connection with, Seller's breach of any of the warranties expressed herein, or any warranties expressed or implied by law. (c) For the duration of the Purchase Order and for a period of two (2) years from the date of delivery of goods or services, Seller will maintain liability, property damage and other insurance to protect Buyer from all the foregoing risks and liabilities, and will provide a certificate evidencing this insurance annually to Buyer, and upon Buyer’s request.
10. Buyer Information: BUYER MAKES NO WARRANTY WITH RESPECT TO INFORMATION PROVIDED BY BUYER TO SELLER OR WITH RESPECT TO THE ACCURACY OR COMPLETENESS THEREOF. BUYER IS PROVIDING ANY INFORMATION ON AN "AS IS" BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SUCH INFORMATION SHALL BE USED BY SELLER AT ITS OWN RISK. Seller acknowledges and agrees that any sales forecasts, quantity purchase estimates, or similar projections received from Buyer are not purchase commitments of Buyer, but simply estimates for planning purposes only, and Buyer has no obligation to purchase or otherwise compensate Seller for any of Seller's finished products or unfinished raw materials not covered by a Purchase Order issued by Buyer.
11. Termination: The Buyer may terminate this Purchase Order in whole or in part by written notice at any time. In that event, any claim arising out of such termination shall be settled by negotiation on the basis of the Seller's actual, verifiable costs and expenses properly incurred or made with due allowance for salvage value. However, Buyer shall not be liable for any charges or expenses Seller may have incurred before the normal or reasonable lead time that was necessary to fulfill the Purchase Order, nor for any expenses or liabilities incurred or arising subsequent to Buyer’s notice of termination.
12. Buyer's Property: All tools, gauges, dies, fixtures and patterns furnished by the Buyer, or which the Buyer specifically authorizes the Seller to acquire for work on this order, shall be the property of the Buyer. Any such items shall be: (a) subject to removal by Buyer at any time and without cost; (b) used only in fulfilling purchase orders placed by Buyer; (c) kept separate from all of Seller’s other materials or tools; (d) clearly identified as the property of Buyer; and (e) properly maintained by Seller to ensure continued operability. Seller assumes all liability for loss of or damage to Buyer’s property, save normal wear and tear. Seller may not remove, dispose of, or pledge as security any of Buyer’s property without Buyer’s prior written consent. Upon Buyer’s request, Seller will provide Buyer with a detailed statement and description of all such property. Seller shall maintain adequate insurance on the above and furnish a certificate of insurance to Buyer if Buyer so requests.
13. Compliance with Laws & Product Contents: Seller warrants and certifies that it shall comply with all laws, treaties, conventions, protocols, orders, regulations, ordinances, codes, standards, rules and directives issued by any governmental agencies or authorities applicable to the activities related to this Purchase Order. Seller shall, at its expense, obtain and comply with the requirements of all permits, licenses, approvals, consents and other regulatory clearances necessary to manufacture and sell the goods or services of this Purchase Order, and to perform its obligations in accordance with the terms herein. Seller agrees to comply with laws applicable to its business, interstate commerce, any and all applicable import and export control laws, and the manufacture and production of goods for commerce, such as the provisions of antitrust and trade practice laws, anti-corruption and anti-bribery, and labor laws such as the Fair Labor Standards Act, as amended, the Walsh-Healey Act, as amended, and any other applicable federal, state and local laws, rules and regulations.
14. Inspection, Quality and Improvements: In order to assess Seller’s work quality and compliance with this Purchase Order, Buyer may, upon reasonable notice to Seller, audit, inspect, and/or verify: (a) records kept by Seller in connection with the Purchase Order; (b) Seller’s products, production processes, facilities and quality systems at Seller’s regular place of business or other applicable locations, including sub-suppliers of Seller, at all reasonable times. Seller shall, at its own expense, provide reasonable facilities and assistance for the safety and convenience of Buyer’s inspectors throughout any such inspection, and shall cooperate throughout the inspection, including completing and returning reasonable documentation and making available its knowledgeable representatives. Buyer’s failure to inspect or reject or detect defects by inspection shall not relieve Seller from its responsibilities under this Purchase Order. Seller shall maintain an inspection, testing and process control system covering the goods and services provided hereunder that is acceptable to Buyer and complies with Buyer’s quality policies, requirements of this Purchase Order, and any other quality requirements that have been agreed upon between the parties. If Seller’s quality system fails to comply with the terms of this Purchase Order, Buyer may require additional quality assurance measures necessary to meet Buyer’s quality requirements, at Seller’s expense. Seller shall keep complete records relating to its quality system, including all testing, certification and inspection data and shall make such records available to Buyer and its customer for the longer of: (a) three (3) years after completion of this Purchase Order; (b) such period set forth in the Purchase Order requirements; or (c) such period as required by applicable law. Subject to the provisions of Section 15, Seller shall use commercially reasonable efforts to implement productivity and cost improvements to yield a bottom line reduction in the pricing of its products. Seller agrees to seek out, notify and advise Buyer of cost reduction opportunities, including, but not limited to, design coordination, cycle time reduction, manufacturing improvements, standardization, and scrap reduction. Buyer may provide product improvement suggestions to Seller, and Seller agrees to give each suggestion due consideration, and provide a written response to Buyer within thirty (60) days after receipt thereof. The parties agree to cooperate and negotiate in good faith to: (a) determine purchase price reductions for any such improvements; and (b) address and resolve any issues or problems regarding Seller’s products.
15. Changes by Seller: Seller shall notify Buyer in writing in advance of any and all: (a) changes to the goods or services, their specifications or composition; (b) process changes; (c) plant or equipment/tooling changes or moves; (d) transfer of any work hereunder to another site; (e) sub-supplier changes; or (f) substitution(s) of goods or components; and no such change or substitution shall occur until an authorized representative of Buyer has approved such change in writing. Seller shall be responsible for obtaining, completing and submitting all relevant documentation regarding any and all changes, including complying with any written change procedures issued by Buyer.
16. Supply Continuity: Seller acknowledges and agrees that continuity of supply of products is essential to Buyer in order to meet the needs of Buyer’s customers. Therefore, Seller will maintain an inventory of replacement parts sufficient to keep the goods operating properly on a global basis and will make such parts available to Buyer. Seller shall establish a list of recommended spare parts, assemblies and tools required for the servicing of goods sold to Buyer, and shall make them available for purchase by Buyer for a period of ten (10) years from the date the product is sold to Buyer. Seller shall continue to maintain in good working condition all Seller-owned tooling required to produce the goods and shall not dispose of such tooling without offering Buyer the right of first refusal to purchase such tooling. Upon Buyer’s request, Seller will furnish contingency plans for the supply of goods or services. Seller will keep Buyer informed of any changes, updates or developments concerning contingency plans for continuity of supply. Seller shall provide Buyer at least nine (9) months advance written notice in the event any goods or any part(s) of any goods will be discontinued or become obsolete, and allow Buyer an opportunity to purchase a reasonable supply thereof. Additionally, if requested by Buyer, Seller will use commercially reasonable efforts to provide a suitable alternate or substitute for such discontinued goods or part(s). Within ten (10) days from the date of Buyer’s request, Seller will submit to Buyer sufficient financial information to provide Buyer adequate and reasonable assurance of Seller’s financial and operational capability to perform its obligations under this Purchase Order. Seller will promptly notify Buyer in writing of any anticipated or actual material change(s) related to its organizational management or ownership.
17. Intellectual Property: Buyer grants to Seller a non-exclusive, non-assignable license, which is revocable at any time, to use any information, specifications, drawings, software, knowhow and other data furnished or paid for by Buyer hereunder for the sole purpose of performing this Purchase Order for Buyer. Each party exclusively owns all intellectual property it had prior to the commencement of this Purchase Order; however, Buyer exclusively owns all rights in ideas, inventions, works of authorship, strategies, plans and data created in or resulting from Seller’s performance under this Purchase Order, including all patent rights, copyrights, rights in proprietary information, trademark rights and other intellectual property rights (collectively “Buyer’s IP Rights”). All such intellectual property that is protectable by copyright shall be considered work(s) made for hire on behalf of Buyer. To the extent that the law would fail to automatically vest in Buyer the full unrestricted ownership of all such works under “work for hire” treatment or similar concepts, Seller hereby assigns to Buyer the copyright and any and all other rights in and to every such work including any derivatives, and the Seller waives any claim of moral right that it may have in or in connection with such work.
18. Confidential Information: “Confidential Information” shall mean information (in any form or media) provided by a party (“Discloser”) to another party (“Recipient”) that is marked “confidential” or “proprietary” or with a similar marking, or if disclosed orally or otherwise in non-documented form, is identified as confidential at the time of initial disclosure, and is designated as confidential in a writing provided to Recipient within thirty (30) days of disclosure. Confidential Information does not include information that: (i) was known to Recipient prior to receipt from Discloser; (ii) is or becomes part of the public domain through no breach of this Purchase Order; (iii) is received from a third party without breach of any obligation of confidentiality; or (iv) is independently developed by Recipient without reference to Confidential Information. All information concerning Buyer’s purchases, prices paid and/or price agreements are deemed Confidential Information, whether or not marked or summarized after oral disclosure. Recipient shall protect the Confidential Information by using at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care. Seller shall not disclose any Confidential Information of Buyer to any third party without Buyer’s prior written authorization.
19. Assignment and Subcontracting: Neither this Purchase Order nor any duty under it shall be delegated, subcontracted or assigned without the prior written consent of the Buyer. If any right arising from this order is assigned, payment to an assignee by Buyer shall be subject to set off or recoupment for any present or future claim or claims which Buyer may have against Seller. Buyer reserves the right to make direct settlements and/or adjustments in price with Seller under the terms of this Purchase Order notwithstanding any assignment of claims for monies due or to become due hereunder and without notice to the assignee.
20. Seller Representations: Seller represents and warrants to Buyer that: (a) the execution, delivery and performance of this Purchase Order is not prohibited or impaired by any judgment or other agreement to which Seller is a party of by which it is bound; (b) Seller is and shall at all times be in possession of all approvals necessary to manufacture, render, process, package, label, deliver and sell the goods and/or services; (c) Seller has the capability, experience and means necessary to properly perform its obligations hereunder, using personnel, equipment, and material qualified and suitable to fulfill the Purchase Order requirements.
21. Applicable Law and Venue: This Purchase Order and all other aspects of the relationship between Seller and Buyer shall be construed and governed according to the laws of the State of Illinois. Seller agrees that any litigation relating to this Purchase Order or which otherwise arises directly or indirectly out of or in connection with that business relationship or any transaction of any nature between Buyer and Seller shall only be commenced in the courts of the State of Illinois. Seller hereby consents to subject itself to personal jurisdiction in the State of Illinois.
22. Miscellaneous: (a) The relationship of Buyer and Seller is that of independent contractors, and neither shall be deemed an agent or representative of the other or have authority to bind the other in any manner whatsoever. (b) This Purchase Order, with documents expressly incorporated by reference, is intended as a complete, exclusive and final expression of the parties’ agreement with respect to the subject matter herein and supersedes any prior or contemporaneous agreements, written or oral between the parties. No course of prior dealings and no usage of trade shall be relevant to determine the meaning of this Purchase Order. (c) The invalidity, in whole or in part, of any section or paragraph of this Purchase Order shall not affect the remainder of such section or paragraph or any other section or paragraph, which shall continue in full force and effect. (d) Either party’s failure to enforce any provision hereof shall not be construed to be a waiver of such provision or the right of such party thereafter to enforce each and every such provision. (e) Buyer’s rights and remedies in this Purchase Order are in addition to any other rights and remedies provided by law, contract or equity, and Buyer may exercise all such rights and remedies singularly, alternatively, successively or concurrently. (f) Seller shall not make any announcement, take or release any photographs (excepting internal operation purposes for manufacture or assembly of the goods), or release any information concerning this Purchase Order or with respect to its business relationship with Buyer, to any third party except as required by applicable law without Buyer’s prior written consent. (g) All provisions or obligations contained in this Purchase Order, which by their nature of effect are required or intended to be observed, kept or performed after termination or expiration of this Purchase Order shall survive and remain binding upon and for the benefit of the parties, their successors and permitted assigns.
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