GENERAL TERMS AND CONDITIONS OF PURCHASE
SULZER PUMPS (US) INC.
1.1 “Applicable Export Laws” means any export control regulations and/or laws in force at the time of export in Supplier’s country of export and/or, in the case of re-export, in force at the time of re-export in the country of origin of the particular re-exported Export Item.
1.2 “Change” means a change of the Contract, such as but not limited to changes related to specifications, shipment, schedule, warranty, design, drawings, quantity, delivery, omissions, modifications, deletions, shipping instructions and/or shipment schedules.
1.3 “Change Order” means the document to be issued by Purchaser and Supplier in common agreement after a Change has been requested by Purchaser or Supplier.
1.4 “Confidential Information” means proprietary or confidential data including pricing, terms, documents, specifications, plans or drawings that are not generally known to the public.
1.5 “Contract” means these Terms and Conditions together with the Purchase Order and all documents and particular terms agreed by the Parties and referenced in the Purchase Order.
1.6 “Contract Price” means the total sum indicated in the Contract together with any adjustments in accordance therewith. For Services carried out on a time basis, the Contract Price shall be determined in accordance with the hourly rates specified in the Contract.
1.7 “Customer” means the customer of Purchaser for the Scope of Supply, including but not limited to the end-user (ultimate owner of the Scope of Supply).
1.8 “Day(s)” means calendar day(s) unless the term “working day(s)” is used.
1.9 “Delivery Date” means the delivery date(s) stated in the Contract.
1.10 “Disclosing Party” means Supplier, Purchaser or Customer disclosing Confidential Information to one or both of the others.
1.11 “Dispute” means any and all disputes arising under or relating to this Contract, including any claims based on statutory or common law.
1.12 “Effective Date” means the date of issuance of the Purchase Order as stated on the face thereof or such other date as may be expressly stated in the Purchase Order.
1.13 “Export Item” means any Scope of Supply, including but not limited to commodities, software or technology provided by Supplier that is required to be exported or re-exported under the Contract.
1.14 “Force Majeure” means war, riots, terrorist attacks, fire, acts of God such as flood and storm or strike (subject to clause 4.3 e hereof).
1.15 “Free Issue Materials” means the materials and/or tools (such as but not limited to dies, jigs, fixtures, patterns, gauges, molds, test equipment, equipment for repairs or servicing by Supplier) delivered by Purchaser for execution of the Contract.
1.16 “Incoterms” means the revision in place at the Effective Date of the document published under the name “Incoterms” by the International Chamber of Commerce.
1.17 “Intellectual Property of Purchaser” means the intellectual property rights connected to the information provided by Purchaser to Supplier in physical or electronic format, or communicated orally.
1.18 “Intellectual Property of Supplier” means the intellectual property rights connected to the information provided by Supplier to Purchaser in physical or electronic format, or communicated orally, and which is needed for the use of the Scope of Supply, irrespective of whether originating from Supplier or its sub-suppliers.
1.19 “Parties” means Purchaser and Supplier.
1.20 “Party” means Purchaser or Supplier.
1.21 “Purchase Order” means the order documents issued by Purchaser to order the Scope of Supply.
1.22 “Purchaser” means the Sulzer Company issuing the Purchase Order or defined as Purchaser in the Contract.
1.23 “Purchaser Indemnitee(s)” means Purchaser and/or Customer, their affiliates, directors, officers, employees, successors and/or assignees.
1.24 “Quality Assurance” means the quality assurance documentation, including but not limited to the quality records, method statements, description of the production and work procedures etc. as required under Purchaser’s, Customer’s and/or Supplier’s quality requirements.
1.25 “Receiving Party” means Supplier, Purchaser or Customer receiving Confidential Information from one or both of the others.
1.26 “Scope of Supply” means the goods and/or Services to be delivered under the Contract, including all related documentation.
1.27 “Services” means site services such as erection and commissioning, repairs and maintenance work.
1.28 “Supplier“ means the Party which is named or defined as Supplier in the Purchase Order.
1.29 “Terms and Conditions” means these Sulzer Pumps Equipment General Terms and Conditions of Purchase.
2.1 The Contract constitutes the entire agreement between Purchaser and Supplier with respect to the performance of the Scope of Supply and supersedes all previous negotiations, representations and/or agreements between the Parties, both written and oral. The Contract shall become a binding agreement at the Effective Date. In particular, all standard or other sales terms submitted by Supplier in any of Supplier’s documents, communications or acknowledgements, whether prior to or after the Effective Date, are hereby excluded unless expressly incorporated in the Contract or otherwise agreed in writing by both Parties.
2.2 It is Supplier’s responsibility to check and verify the documentation provided by Purchaser for the purposes of the execution of the Contract and to notify Purchaser in writing in the event of any discrepancies, errors or inadequacies within the documentation. If no such notification takes place within five (5) Days after receipt of the documentation, the documentation shall be deemed to be accepted.
2.3 In case of contradiction between the said documents, the following order of priority shall apply:
- Latest version of the Change Order
- Contract documents signed by both Parties
- Purchase Order
- Purchaser’s specifications
- Purchaser’s Terms and Conditions
- Supplier’s offer documents excluding Supplier’s terms and conditions
3.1 Conforming to the Delivery Date is an essential requirement for the Contract. Supplier shall deliver the Scope of Supply and the related documentation in the quality and on the date(s) specified in the Contract.
Delivery Date shall be deemed to have been met only for Scope of Supply and documentation which is in conformity with the Contract. Time extensions shall only be accepted in Change Orders or, to the extent agreed by Purchaser, in case of Force Majeure events.
3.2 Delivery shall be made according to the Incoterms revision mentioned in the Purchase Order, or if no such revision is mentioned in the Purchase Order, the revision current at the Effective Date of the Contract. If no specific delivery terms have been agreed upon, delivery shall be made according to Incoterms (revision current at the Effective Date of the Contract) DDP (Delivered Duty Paid) Purchaser’s place.
3.3 Supplier shall notify Purchaser in writing of the readiness for dispatch of the Scope of Supply not less than ten (10) working days before shipment. Supplier shall deliver the Scope of Supply on the Delivery Date.
3.4 In the event of actual or foreseeable delay, Supplier shall immediately notify Purchaser giving details of its proposed action plan to be implemented at Supplier’s cost in order to mitigate such delay. In the event that Purchaser deems that such Supplier proposal is inadequate, Purchaser reserves the right to provide a revised, reasonable action plan and Supplier shall implement such plan at Supplier’s cost. Any actions by Supplier in accordance with this clause 3.4 or any Purchaser proposals, or lack of Purchaser proposals, shall not relieve Supplier of its liability for delay.
3.5 Where the Delivery Date is determined by a period of time, such period shall commence at the Effective Date.
3.6 If Purchaser is not in a position to take over the Scope of Supply on Delivery Date, Purchaser shall inform Supplier in due time after receipt of announcement of readiness for dispatch from Supplier. Supplier undertakes to store the Scope of Supply at Supplier’s risk and cost in its premises for a period of maximum two (2) months from Delivery Date.
3.7 Where liquidated damages for late delivery are agreed by the Parties and expressly stated in the Contract, Supplier shall pay liquidated damages at the rate specified in the Contract. If no liquidated damages are stipulated in the Contract, Purchaser shall be entitled to all remedies provided by the applicable law in case of late delivery, including but not limited to termination of the Contract for cause according to clause 15 hereof.
4. Force Majeure
4.1 In case the delivery under the Contract is affected by a Force Majeure event, Supplier shall immediately inform Purchaser in writing and provide reasonable evidence of such Force Majeure event. In the event of delay in performance due to such Force Majeure event, the Delivery Date or time for completion of the Services will be extended to reflect the length of time lost by reason of such delay. If the grounds for Force Majeure continue for more than two (2)months, both Supplier and Purchaser may terminate the Contract upon seven (7) Days written notice to the other Party.
4.2 Upon termination, Purchaser shall have the option to buy the finished and unfinished parts of the Scope of Supply and related sub-supplies from Supplier. Supplier shall be entitled to be compensated for the work done plus the expenses for the sub-supplies bought by Purchaser.
4.3 No event or circumstances shall be considered to be an event of Force Majeure to the extent such circumstance or event is due to the neglect or breach of Contract or of statutory duty of a Party. Furthermore Force Majeure shall not include
- any failure of Supplier to perform its obligations under the Contract unless caused by Force Majeure, or
- any shortage of materials or utilities, unless such late delivery or shortage is caused primarily by an event of Force Majeure, or
- lack of funds, or
- any breakdown of equipment or machinery unless such breakdown was caused by an event of Force Majeure, or
- any strike or other form of labor dispute which involves the employees of Supplier and any sub-supplier, unless Supplier can reasonably demonstrate that it does not arise out of any act or omission of Supplier or any sub-supplier.
5. Transfer of Title and Risk
5.1 Unless otherwise required by the applicable compulsory law, title to the Scope of Supply and parts thereof shall be transferred to Purchaser as soon as parts of the Scope of Supply have been finished.
5.2 Until delivery of the Scope of Supply, Supplier shall store and insure the same separately at its own cost and clearly mark and identify it as Purchaser’s ownership.
5.3 Supplier undertakes to impose corresponding obligations to its sub-suppliers in order to ensure that Purchaser’s rights under this clause 5 shall also apply to sub-supplies related to the Scope of Supply.
6. Price and Payment
6.1 Unless otherwise stated in the Contract, the agreed purchase prices shall be fixed prices, shall remain unchanged until completion of the Contract and shall include packaging and freight costs as well as taxes and duties exclusive of VAT / Value Added Taxes.
6.2 Value Added Taxes and other comparable taxes levied on sales such as sales taxes, packaging costs and freight costs shall be stated separately inthe invoice. The format of the invoice must be scannable and must be in compliance with the applicable law. It shall state the number of the Purchase Order, identify partial deliveries and, if mentioned in the Contract, also the line items.
6.3 Payment terms shall be net within 60 days following the end of the month from the receipt of the Scope of Supply and acceptance of the invoice by Purchaser.
6.4 Unless otherwise stated in the Contract, if Purchaser makes advance payments, Supplier shall provide an irrevocable, unconditional first demand bank guarantee in the amount of the advance payments, issued by a first class bank acceptable to Purchaser, having a validity date as agreed between the Parties.
6.5 On delay of requested certificates of material, quality documents or other documents making part of the Scope of Supply, Purchaser shall be entitled to extend any agreed payment period in accordance with the delay.
6.6 Purchaser reserves the right to set off counter-claims of Purchaser or its affiliated companies against payments owed to Supplier. Supplier shall only be entitled to assign claims against Purchaser to third parties with Purchaser’s prior written approval, which Purchaser shall not refuse unreasonably.
6.7 The payment by Purchaser of any sums under the Contract does not signify acceptance of any of the Scope of Supply nor does such payment relieve Supplier of any of its obligations under the Contract.
7. Inspection, Drawings, Test Certificates, Operating Instructions, Spare Parts Deliveries
7.1 Supplier shall carry out the inspections and tests of the Scope of Supply in compliance with the requirements stated in the Contract and provide toPurchaser all related certificates and inspection reports. Unless otherwise agreed in the Contract, inspection and test costs shall be borne by Supplier. The inspection and test place shall be determined in the Contract.
7.2 Supplier shall give Purchaser reasonable notice of the inspection date, and Purchaser shall be entitled to attend the inspection. Purchaser shall be entitled to reject any part of the Scope of Supply that is defective or does not comply with the Contract and Supplier shall correct such defect or non-compliant Scope of Supply and carry out new inspections and tests of the same at Supplier’s cost, without affecting the Delivery Date.
7.3 Supplier shall permit (or arrange for permission) Purchaser or other party to be nominated by Purchaser, including agents, representatives or Purchaser’s Customer, to reasonably and safely access the Scope of Supply, either at Supplier’s premises or other places, including the premises of Supplier’s sub-suppliers’ sites, where the Scope of Supply is being executed, prepared or stored, during normal working hours for the purposes of inspection, progressing and testing of the Scope of Supply.
7.4 Purchaser’s approval of final construction drawings, inspections and tests shall in no event relieve Supplier of its responsibility for the Scope of Supply.
7.5 Final construction drawings, test certificates, maintenance and operating instructions and spare parts lists required for the proper maintenance of the Scope of Supply shall be handed over to Purchaser in the quantities and languages requested in the Contract.
7.6 Supplier shall deliver to Purchaser spare parts related to the Scope of Supply, at Purchaser’s request, within fifteen (15) years after acceptance of the Scope of Supply at fair market prices applicable at the time of delivery.
8.1 Supplier shall comply with Purchaser’s, Customer’s and Supplier’s Quality Assurance requirements, which will include the production of work procedures and/or method statements and quality inspection plans. Supplier shall provide Purchaser a copy of its Quality Assurance documentation upon Purchaser’s written request.
8.2 Quality records have to be safely archived for the period required by the law applicable to the respective Scope of Supply, however not less than ten (10) years after acceptance as defined in clause 11.1 hereof.
8.3 No substitutions shall be made without the prior written consent of Purchaser, including use of an alternate supply or substitutions that the Supplier feels do not impact fit, form or function. In addition, Supplier shall not make any revisions to the specifications, origin of materials or products, manufacturing processes or materials of a product without the prior written consent of Purchaser. Any and all costs for unauthorized changes shall be borne by the Supplier.
9. Free Issue Materials
9.1 The title to Free Issue Materials shall remain with Purchaser even after Supplier has performed Services on them. Such materials and/or tools shall be marked as Purchaser’s property, shall be stored separately until used for performance of the Contract and shall be insured by Supplier under an all risks policy for their full replacement cost.
9.2 On demand by Purchaser, machining waste from Free Issue Materials shall be returned to Purchaser.
9.3 Supplier shall notify Purchaser immediately of any claim of faulty or insufficient quantity or quality of Free Issue Material or such claim is waived.
9.4 Free Issue Materials made available by Purchaser must not be copied or used for any purpose except for the execution of Purchase Order placed by Purchaser, unless Supplier has obtained Purchaser’s prior written approval.
10.1 At any time Purchaser has the right to instruct Supplier in writing to vary the Scope of Supply, and Supplier shall proceed with such variation as instructed. Variations may include Changes as defined herein above.
10.2 If any Change affects the price and/or Delivery Date, Supplier shall inform Purchaser in writing of the effects thereof within three (3) working days of receipt of Purchaser’s instruction and an equitable adjustment shall be made to the Contract Price and/or Delivery Date. Should Supplier fail to notify Purchaser of such effects within the required timescale, then Supplier waives all rights to any adjustment. Save as aforesaid, Supplier shall not make any alteration in or modification of the Scope of Supply.
11. Acceptance, Warranty
11.1 Unless otherwise agreed upon in writing, acceptance shall take place after delivery at the place of destination or after putting into commercial operation at Purchaser’s or Customer’s place, whichever occurs latest. Payment for work in whole or part will not constitute acceptance.
11.2 Supplier expressly warrants that the entire Scope of Supply covered by the Contract will conform to specifications, drawings, samples, performance guarantees or any kind of description furnished or specified by Purchaser and forming part of the Contract, will be merchantable, of good and new material, state-of-the-art workmanship as usually applied for such Scope of Supply and free from defects. Supplier expressly warrants that any design carried out by Supplier together with the material specified in the Contract will be fit and sufficient for the purpose specified. If certificates, test reports or similar documents form part of the agreed Scope of Supply, the data contained therein shall be deemed as warranted characteristics, even if such certificates originate from Supplier’s sub-suppliers.
11.3 Should Supplier fail to meet the warranties or guarantees during the warranty and guarantee period, Supplier shall at Purchaser’s option forthwith remedy the defects on the spot, or have them remedied at Supplier’s cost. Should Supplier fail to remedy defects forthwith or in case of emergency, Purchaser shall be entitled to remedy the defects itself or cause them to be remedied by a third party, in each case at Supplier’s charge and risk. Such remedy of defects by Purchaser shall not affect the warranty obligations of Supplier.
11.4 Purchaser shall not be obliged to inspect the Scope of Supply or parts thereof immediately. Defects will be notified after detection. Supplier hereby waives the defense of late notification.
11.5 Unless otherwise agreed in the Contract, the warranty and guarantee period shall commence upon acceptance of the Scope of Supply as described in clause 11.1 hereof and shall expire eighteen (18) months from the date the Scope of Supply is put into commercial operation by Customer or thirty-six (36) months from the date of delivery of the Scope of Supply, whichever occurs first. In the event that Supplier is required to remedy any defects in accordance with this clause 11, the expiry of the warranty and guarantee period shall be extended by a period equal to the period between the date of notification of the defect by Purchaser and the date of satisfactory completion of the remedy by Supplier. For the repaired or replaced Scope of Supply or repeated Services, the warranty and guarantee period shall start anew from the date at which it is put into operation following the satisfactory completion of such repair, replacement or repeat.
11.6 Goods produced from materials other than specified, or by defective materials, shall be replaced by Supplier free of charge within five (5) years from delivery if defects are not detectable by visual control without using optical instruments.
11.7 Where substitute delivery is made, the items originally delivered to Purchaser shall be left with Purchaser for use free of charge until such substitute delivery is ready for operation to Purchaser. The same shall apply in case of whole or partial termination of the Contract due to faulty supply.
11.8 In the event of Disputes on quality parameters, an expert opinion will be obtained. The expert shall be determined in common agreement, must be neutral with regard to his/her relationship to the Parties and must have sufficient experience with respect to the case to be decided. The Parties undertake to accept the findings of the agreed expert. The costs of the expert opinion will be borne by the Party at fault.
12. Compliance with All Laws and Regulations applicable to the Contract / UN Global Compact
12.1 Supplier warrants that it will comply with the requirements of the Contract and with all applicable laws, statutes, rules and regulations for the execution of the Contract. Supplier hereby indemnifies and holds Purchaser harmless for all costs and expenses (including legal costs), penalties and fines incurred as a result of a failure by Supplier to comply with this requirement.
12.2 The Sulzer Corporation is a participant of the UN Global Com-pact. Supplier is required to respect the 10 Principles contained therein, such as but not limited to not using child or forced labor, respect internationally proclaimed human rights, promote supply chain transparency and integrity with regard to “conflict minerals”, not discriminate in respect of employment, act responsibly regarding the environment, and work against corruption in all forms, including extortion and bribery.
12.3 Purchaser has implemented a global prohibited substances compliance program. This program addresses legislation (such as REACH, RoHS, WEEE, TSCA) by regulatory groups around the world aimed at changing manufacturing processes and components to reduce health and environmental concerns. The Sulzer Corporation maintains a company-wide list of prohibited substances at www.sulzer.com (Prohibited Substances list). Supplier warrants that it will not supply to Purchaser as part of its Scope of Supply any substance on the Prohibited Substances list. Supplier will defend and indemnify Purchaser Indemnitees and hold each Purchaser Indemnitee harmless from and against any and all liabilities damages, settlements, penalties, fines, costs or expenses (including without limitation reasonable attorneys’ fees, interest, and other expenses of litigation) arising out of or related to failure to comply with this provision, including any losses arising out of or attributable to the actual or alleged exposure of any person to asbestos, silica, asbestos-containing materials or similarly harmful substances as the result of Supplier’s delivery of any goods within the Scope of Supply containing asbestos or silica to the Purchaser Indemnitee.
12.4 To the extent that the Scope of Supply is related to a government contract or subcontract, Supplier shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
13. Liens and Similar Claims
13.1 Supplier guarantees that all Scope of Supply to be delivered under the Contract will be free of any lien, encumbrance or claim of any nature by any third party.
13.2 Further, Supplier shall not claim any lien, charges, attachment or other similar claim on the Scope of Supply or on any property of Purchaser or Customer and shall indemnify and hold harmless Purchaser and/or Customer against any lien, charge, attachment or other similar claim by Supplier and Supplier’s sub-suppliers or any other third party to Supplier in connection with the Scope of Supply.
13.3 Supplier shall indemnify and defend Purchaser and the Customer against any and all claims, demands, actions, suits, proceedings and judgments which may be brought or secured against by reason of Supplier’s failure under this clause 13.
14. Intellectual Property
14.1 All Intellectual Property of Purchaser shall remain the exclusive ownership of Purchaser and may be used by Supplier only for the purpose of fulfilling its obligations under the Contract.
14.2 Supplier grants Purchaser and Customer a free, unlimited, irrevocable and transferable license to use the Intellectual Property of Supplier and its sub-suppliers for the unrestricted use of the Scope of Supply.
14.3 Supplier warrants that the Scope of Supply and the Intellectual Property of Supplier, and any component part thereof, shall not infringe any intellectual property rights of third parties. In the event of any such infringement, Purchaser may, in its sole discretion, require Supplier to procure the right to use the Scope of Supply without impairing its suitability or modify or replace it so that it is rendered non-infringing. Supplier shall indemnify and hold harmless Purchaser against any claims referring to the infringement of third party intellectual property rights.
15. Termination for Cause
In the event Supplier shall be adjudged bankrupt, make a general assignment for the benefit of its creditors, or if a receiver, administrator or liquidator shall be appointed on account of Supplier’s insolvency, ceasing to trade or failing to pay debts, or in the event a Supplier is in default of any requirements under the Contract, Purchaser may, by written notice to Supplier, without prejudice to any other rights or remedies which Purchaser may have under the Contract, cancel further performance by Supplier under the Contract. In the event of such cancellation, Purchaser may complete the performance of the Contract by such means as Purchaser selects and Supplier shall be responsible for any additional costs incurred by Purchaser in so doing. Supplier shall deliver or assign to Purchaser any Scope of Supply in progress as Purchaser may request. Any amounts due to Supplier for the portion of Scope of Supply completed by Supplier in full compliance with the terms of the Contract prior to such termination shall be subject to set off of Purchaser’s additional costs of completing the Contract and other damages incurred by Purchaser as a result of Supplier’s default.
16. Termination for Convenience
Purchaser reserves the right to terminate the Contract at any time during performance of the Contract, in whole or in part, upon written notice to Supplier. Purchaser shall pay Supplier all its reasonably substantiated direct costs sustained as a result of such termination, however not exceeding the portion of the Contract Price that represents the completed part(s) of the Scope of Supply. Such reimbursable expenses shall not include the business profit, fixed overhead, royalties, development cost for serial machines and other similar costs of Supplier. In consideration of the payment made, Supplier shall deliver or assign to Purchaser any Scope of Supply in progress and Purchaser shall be entitled to use said Scope of Supply in progress at its own discretion. Supplier undertakes to impose corresponding obligations to its sub-suppliers.
17.1 Upon receipt of Purchaser’s notice to suspend the performance of the Contract or any part thereof, Supplier shall cease work on the suspended parts of the Contract until receipt of Purchaser’s written notice to resume and shall take such actions as may be necessary to protect and safeguard the part(s) of the Scope of Supply affected by the suspension.
17.2 Unless Purchaser’s notice to suspend the Contract is attributable to an act or omission of Supplier or its sub-suppliers, the Delivery Date shall be adjusted to account any actual delivery directly resulting from suspension and the Contract Price shall be adjusted in respect of Supplier’s reasonable substantiated direct costs incurred as a result thereof.
18.1 In connection with the Contract, Disclosing Party may provide Receiving Party with Confidential Information. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, its representatives or its affiliates, (ii) is or becomes available to the Receiving Party or its representatives or affiliates on a non-confidential basis from a source other than the Disclosing Party when such source is not, to the best of the Receiving Party’s knowledge, subject to a confidentiality obligation to the Disclosing Party, (iii) has been or is subsequently independently developed by the Receiving Party, its representatives or affiliates, without reference to the Confidential Information or (iv) is required to be disclosed by order of a competent court or government agency.
18.2 Subject to clauses 14.1 and 14.2 hereof, the Receiving Party agrees, except as otherwise required by law: (i) to use the Confidential Information only in connection with the performance of the Contract or installation, operation, maintenance and use of Scope of Supply sold hereunder and (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except to its employees or its sub-suppliers and their employees (if any) for the purpose of performance of the Contract or installation, operation, maintenance or use of the Scope of Supply sold hereunder. Further, if disclosure of Confidential Information to a third party is required, the Receiving Party agrees to use its best efforts to require proprietary or confidential treatment of the Confidential Information by such third party.
19.1 Supplier hereby represents and warrants that it is and will remain in compliance with the requirements of all Applicable Export Laws. Such requirements include but are not limited to obtaining all required authorizations or licenses for the export or re-export of any Export Item.
19.2 Without limiting the generality of the foregoing, Supplier hereby represents and warrants that it has not been and is not currently debarred, suspended or otherwise prohibited or restricted from exporting, re-exporting, receiving, purchasing, processing or otherwise obtaining any Export Item regulated by any agency having jurisdiction. Supplier warrants that it will export and/or re-export any Export Item in accordance with all Applicable Export Laws and Supplier agrees to indemnify and hold harmless Purchaser from any costs, penalties, fines or other losses caused by or related to any violation or breach of the warranties contained in this provision.
20. Installation and Site Preparation
In case the Scope of Supply contains Services to be provided at Purchaser’s, Customer’s or a third party’s site, additional obligations of Supplier may be stated in the Purchase Order.
21. Insurance, Liability, Indemnity
Supplier shall effect and maintain from the Effective Date until the expiry of Supplier’s obligations and liabilities under the Contract the following insurances with first class reputable insurers approved by Purchaser.
- Property Insurance for the Scope of Supply and any Free Issue Materials for their full replacement value whilst at Supplier’s works against loss, destruction and damage caused by a peril covered under all risk type property insurance.
- Transport Insurance shall be effected in accordance with the agreed delivery term, which shall be construed in accordance with the Incoterms as defined in the Contract. If no trade term is specifically agreed or if the agreed trade term does not address transport insurance, then Supplier shall insure the Scope of Supply for one hundred and ten percent (110 %) of its full replacement value whilst in transit to the place where the risks are transferred to Purchaser against loss, destruction and damage caused by a peril covered under an all risk type transport insurance.
- General and Products Liability Insurance covering legal liability for bodily injury and damage to third party physical property including Purchaser Indemnitees and Purchaser Indemnitees’ property other than the Scope of Supply arising out of performance of this Contract. The minimum limit of insurance shall be five million U.S.A. dollars ($ 5.000.000) per occurrence.
- For Supplier’s employees engaged in performing the Contract Occupational Accident and Disease Insurance (i.e. workers compensation or similar social insurance) in accordance with the law which may apply to those employees.
- Employers’ Liability Insurance in accordance with the law which may apply to Supplier. Where no such law exists, Supplier shall effect and/or maintain employers’ liability coverage under its existing general and products liability insurance with a limit of five million U.S.A. dollars ($ 5.000.000) per occurrence.
- If Supplier’s employees use owned, non-owned or rented automobiles whilst performing Services at Customer’s or Purchaser’s site, Supplier shall effect and/or maintain Automobile Liability Insurance in accordance with local laws or custom.
- Any Other Insurance required by Purchaser and/or Customer and stated in the Contract.
The provision by Purchaser of any of the insurances as required hereunder or any other insurances that Supplier may rely upon shall not limit Supplier’s liabilities under this Contract.
Whenever required by Purchaser,Supplier shall furnish certificates of any insurance which Supplier is required to effect and/or maintain under this Contract.
To the extent provided for in this Contract or the applicable law, Supplier shall be liable for all damages caused to Purchaser by (i) Supplier, its directors, officers, employees, successors and/or assignees and/or (ii) Supplier’s sub-suppliers, their directors, officers, employees, successors and/or assignees.
Supplier will defend and indemnify Purchaser Indemnitees and hold each Purchaser Indemnitee harmless from and against any and all liabilities, damages, settlements, penalties, fines, costs or expenses (including without limitation reasonable attorneys’ fees, interest and other expenses of litigation) arising out of any claim, complaint, suit, proceeding or cause of action brought against a Purchaser Indemnitee by a third party or employees or subcontractors of Supplier alleging damage, loss, personal injury, death or otherwise, arising from or occurring as a result of (i) product defects, (ii) defects to worked-on equipment, (iii) any breach of Supplier’s representations and warranties and obligations under the Contract, (iv) negligent, fraudulent or willful acts, omission or misrepresentations of Supplier, (v) Supplier’s violation of any applicable law in the performance of its obligations under the Contract, (vi) any alleged infringement of any intellectual property, except where such infringement arises directly from any design provided by Purchaser or Customer or (vii) of any obligations related to export control as described herein above.
22. Applicable Law / Dispute Resolution
22.1 Applicable Laws and Jurisdiction
The Contract is construed and shall be interpreted in accordance with the laws of the State of Texas, United States of America (U.S.A) without reference to that country’s conflict of laws principles. Nothing contained in these Terms and Conditions shall limit the rights of Purchaser available under the applicable law.
22.2 Any and all Disputes arising under or relating to this Contract, including any claims created by statutory law, are referred to in this paragraph as a “Dispute.” Should a Dispute arise, the Parties shall first seek to resolve it by informal mediation. Mediation shall be initiated by one Party sending a written request for mediation, together with a description of the Dispute, to the other and shall proceed in any manner in which the Parties may agree. Any Dispute not resolved by mediation within forty five (45) Days after written notice of the request for mediation shall be resolved in accordance with a) or b) below, as applicable.
- Any Dispute involving a Supplier that is not incorporated, or does not have its principal offices in the U.S.A., shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one (1) unless the amount in Dispute exceeds the equivalent of one million U.S.A. dollars ($1,000,000), in which event it shall be three (3). When three (3) arbitrators are involved, each Party shall have the right to nominate an arbitrator, and the chairman shall be appointed by the two arbitrators. The seat, or legal place, of arbitration shall be Houston, Texas. The arbitration shall be conducted in the English language. No punitive damages may be awarded. The decision of the arbitrator(s) shall be final and binding upon the Parties, and, to the extent permitted under the applicable law, neither Party shall seek recourse to a law court or other authorities to appeal for re-visions of such decision.
- Any Dispute not involving a Supplier that is not incorporated, or that does not have its principal offices, in the U.S.A. shall be brought in an appropriate court in Harris County, Texas, U.S.A. and the Parties hereto consent to the exclusive jurisdiction of such court in respect of all such claims. Each Party hereby submits to and accepts generally and unconditionally the jurisdiction of such court.
23.1 Access Rights
Supplier shall permit Purchaser and/or Customer and their employees, agents and/or any identified representative access to any of its and/or its sub-suppliers’ premises at any reasonable time for the following purposes:
- Expediting the delivery of the Scope of Supply.
- In connection with their verification of Supplier’s or sub-supplier’s compliance with the Quality Assurance requirements.
- For the inspection of Free Issue Materials.
Subject to clause 23.3 hereof, Supplier shall not assign, transfer or delegate any of the rights, duties or obligations set forth in the Contract to a third party, except respective prior written consent has been received from Purchaser.
Supplier shall not subcontract all or substantial parts of the Scope of Supply without prior written approval of Purchaser and shall submit to Purchaser a list containing all sub-suppliers. This provision shall not apply to purchases of standard commercial products, nationally advertised products or raw materials.
Supplier shall be responsible for the sub-supplies in the same way as for its own supplies under the Contract. Supplier must provide to its sub-suppliers all necessary information such that all requirements (including key characteristics where required) under the Contract will be fulfilled.
23.4 Waiver of Rights
Purchaser’s or Supplier’s failure to exercise any of their rights shall not constitute or be deemed a waiver or a forfeiture of such rights.
If a provision of the Contract is determined to be void or unenforceable, this finding shall not render other provisions void or unenforceable, and Purchaser and Supplier shall make their best endeavors to replace such provision by a valid one covering the original commercial intention as far as legally possible.
Changes to the Contract shall be made in Change Orders.
In case Contract documents are executed in more than one language, and if one of these languages is English, the English version shall prevail.