1.1 These general purchase conditions (“T&C”) shall apply to all goods and services obtained by BUYER from SELLER, unless expressly excluded within the Purchase Order, and its application subject to terms expressly agreed to in the Purchase Order or other written agreement between BUYER and SELLER (e.g., MSA). In the event of conflict between these T&C and the terms expressly agreed to in the Purchase Order, the terms in the latter shall prevail.
2.1 BUYER: ITC GLOBAL
2.2 SELLER: The firm or person specified as such in the Purchase Order.
2.3 Purchase Order: The document issued by BUYER to SELLER specifying the goods or services to be obtained, including any exhibits or referenced documents it expressly incorporates, including any framework agreement (e.g., MSA) executed by BUYER and SELLER (if applicable), but excluding any terms contained in any order acceptance or confirmation provided by SELLER.
3.1 All documentation including but not limited to drawings, manuals, commercial and technical correspondences provided by the SELLER shall be in English language.
4.1 The Purchase Order together with all its exhibits referred to and attached thereto, any framework agreement (e.g., MSA) executed by BUYER and SELLER (if applicable), and these T&C shall constitute the entire agreement ("Agreement") between the SELLER and BUYER as at the date of acceptance by the SELLER and supersede any and all quotations, negotiations and/or previous agreements either written or oral with respect to the subject of the Purchase Order. These terms and conditions shall not be amended, replaced and/or cancelled without the BUYER's express written agreement.
5.1 The price will be as stated in the Purchase Order and unless, otherwise expressly provided in the Purchase Order, will include all labour, plant, materials, equipment, machinery, vehicles, tools, facilities and services, and all ancillary and other works, expenditure, risks, overtime and contingencies, required or necessary to be undertaken, for the proper execution and completion of the works specified in the Purchase Order.
The price shall be firm and fixed and no adjustment in the price may be made whether on account of change in any legislation, increased costs of labour, materials or transport, or fluctuation in rates of exchange or otherwise. The price shall be inclusive of all costs and expenditures required to comply with all applicable laws or regulations including, without limitation, all required licenses and permits.
5.2 All taxes, dues, duties, levies and charges which must be incurred or suffered for the SELLER to perform its obligations under the Purchase Order are deemed included in the price as stated in the Purchase Order.
5.3 In the case of deliveries charged for on a reimbursable basis, payment will become due according to clause 6 only when the BUYER has had a reasonable time to examine and verify as accurate all documentation on which the account is based.
6.1 SELLER shall be entitled to invoice BUYER at the times specified in the Purchase Order. BUYER shall make payment within days following the receipt of a correct invoice formatted as reasonably instructed by BUYER, provided that all SELLER's obligations according to the Purchase Order have been fulfilled. BUYER may withhold disputed amounts.
6.2 If delivery takes place earlier than agreed, the starting point for calculation of the payment date shall be based on the receipt date of the SELLER’s invoice.
6.3 Amounts not paid within thirty days of BUYER’s receipt of SELLER’s invoice will be subject to an interest charge of the lesser of one and one-half percent per month or the highest rate permitted by applicable law.
7.1 The parties hereto agree that their respective minimum obligations and liabilities, about applicable shipping terms used to relate to equipment and material purchased/supplied under the provisions of the Purchase Order, will be interpreted in accordance with rules prescribed in INCOTERMS 2010 and latest addenda published by the International Chamber of Commerce, Paris, France.
7.2 If the BUYER is responsible for the transportation, the SELLER shall in a reasonable time before dispatch, request dispatch instructions from the BUYER. If SELLER is responsible for the shipping, it shall come as soon as possible, and not later than the date of dispatch, send an advice note to the BUYER advising of the shipment so that BUYER may prepare for receipt of the goods.
7.3 SELLER shall submit commercial invoices and packing lists to the BUYER at least seven days before shipment of goods being delivered by road or sea. For short delivery times, such as airfreight, SELLER shall submit commercial invoices and packing lists at least 24 hours before dispatch. SELLER shall not proceed to dispatch without confirmation from BUYER.
8.1 Packing lists/advice notes/invoices etc. shall only relate to one Purchase Order and shall be duly marked according to specifications stated in the Purchase Order. Packing lists/advice notes and invoices shall be completed so that each item corresponds to the Purchase Order concerning the item number, goods description, and specification.
8.2 If the consignment consists of more than one package, each package shall contain a detailed list of contents.
8.3 SELLER shall submit to BUYER one original invoice and one copy. BUYER may reject invoices which do not comply with the Agreement.
8.4 For all deliveries, the goods, and packing lists/advice notes, shall be duly marked with the gross weight and dimensions. Where applicable, project-specific requirements shall be strictly followed.
8.5 All original certificates and documents shall be sent to the applicable BUYER’s office as specified in the Purchase Order. These documents are a part of the delivery and invoices shall not be paid until they have been received.
8.6 For imported deliveries, SELLER must provide, a reasonable time before shipment, a draft or copy of packing list, commercial invoice, airway bill or bill of lading to provide BUYER adequate time for review and preparation of customs and import procedures. Unless otherwise agreed in writing, SELLER will be responsible for all importation, including all expenses related thereto. Both parties shall comply with all applicable import/export laws.
8.7 An invoice shall at least contain the following details:
9.1 In the case of goods of EC “European Community” or EFTA origin, BUYER or any third party specified by BUYER shall be supplied with a certificate of origin and customs invoices.
9.2 Costs incurred by BUYER due to lack of certificate of origin or customs invoices shall be charged to SELLER and deducted from the purchase price or, in the case of advance payments of the full purchase price having already been made to the SELLER, be paid by the SELLER to the BUYER within fifteen calendar days of receipt of a notice from the BUYER demanding payment.
10.1 Partial deliveries shall not be accepted and cannot be considered as a partial fulfillment of SELLER's obligations unless requested or accepted in writing in advance by BUYER.
10.2 As soon as SELLER believes, or has grounds for believing, that the delivery will be delayed, he shall immediately notify BUYER in writing of the delay and the cause thereof. SELLER shall furthermore inform BUYER of the measures it will initiate to minimize the delay and state a revised delivery date and in such an event the BUYER shall be entitled at its discretion to accept such revised delivery date or to cancel the Purchase Order without any liability to the BUYER.
10.3 If delivery of the goods is not made in the quantities and on the delivery date or dates specified or the rendering of the services is not completed by the date or dates specified in the Purchase Order, BUYER shall have the right, in addition to its other rights and remedies, to take either or both of the following actions:
10.4 Under no circumstances shall the SELLER withhold goods or documentation.
11. PACKAGING & INDENTIFICATION
11.1 All goods must be packed and labelled in conformity with a suitable preservation, packing, identification, shipping and related documentation procedure which shall be submitted to the BUYER for prior approval.
11.2 All goods must be packed in the manner as specified by BUYER and shipped in the manner and by the route and carrier designated by BUYER (if applicable). If BUYER does not specify the way the goods must be packed, SELLER shall pack the goods to avoid any damage in transit. If BUYER does not specify the manner of shipment, route or carrier, SELLER shall ship the goods at the lowest possible transportation rates, consistent with SELLER's obligation to meet the delivery schedule and the care of the goods, set forth in this Purchase Order.
11.3 Where the Purchase Order is silent on storage requirements for the goods then SELLER warrants that the goods will be stored without deterioration.
12.1 Notwithstanding anything to the contrary stated in the Agreement, the risk of loss in transit shall not pass to BUYER until delivery and signed acceptance of the goods at the designated delivery point for the goods to the location identified on the face of the Purchase Order.
13.1 BUYER has the right to reject deliveries by SELLER if packaging or identification do not meet requirements stated in the Agreement.
13.2 BUYER's payment for the goods shall not constitute its acceptance of the goods. BUYER shall have the right, but not the obligation, to inspect the goods and to reject any of the goods which are in BUYER's judgment defective. Goods so dismissed, and goods supplied more than quantities ordered shall be returned to the SELLER at the SELLER’s expense unless other arrangements are agreed between the BUYER and SELLER. The fact that BUYER failed to inspect or test any goods shall not affect any of the BUYER's rights.
13.3 If goods arrive damaged the BUYER will decide to accept or reject the delivery after inspection. If goods are rejected the SELLER must bear the cost of goods returned, additional handling or any storage fees and all related costs including, but not limited to, replacement of the rejected items.
13.4 For goods received and declared rejected by BUYER; BUYER shall at its sole discretion elect to accept repair instead of replacement. Any such associated costs shall be borne by SELLER.
14.1 The BUYER has the right to change the BUYER’S requirements and specifications at any time.
14.2 Changes shall be confirmed by BUYER by the issue of a change order. This change order shall after that be confirmed by SELLER. SELLER shall come as soon as possible but no later than 14 days inform BUYER in writing the effect that the requested change will have on the price, time of delivery and technical specifications. It shall be a condition precedent to SELLER’S right (if any) to an adjustment of the price or the time of delivery that no later than 14 days after receipt of the change order he shall have notified BUYER as to the effect in his opinion (if any) on such price and time of implementing the change order. If in SELLER’S opinion any order or instruction of BUYER or any other circumstances entitles SELLER to a change order, he shall notify BUYER in writing within 14 days of the relevant order or instruction with details of the change order sought.
14.3 Disagreement as to compensation payable in respect of such change order shall not entitle SELLER to withhold its delivery of goods, documentation or services.
14.4 SELLER shall not transfer, assign or sublet this Agreement or any part thereof without the prior written consent of the BUYER. Any permitted transfer, assignment or subletting shall not relieve the SELLER of his obligations hereunder. A copy of any such transfer, assignment or subcontract made by the SELLER shall be furnished forthwith to BUYER on request.
15.1 BUYER may at its sole discretion choose to terminate or suspend this Agreement or any part hereof for any reason if SELLER refuses or fails to comply, or so fails to make progress as to threaten performance, with any provisions of this Agreement. SELLER will promptly advise BUYER of the quantities of applicable work and material on hand or purchased for this order prior to termination or suspension, or services completed and of the most favourable disposition that SELLER can make thereof. SELLER will comply with BUYER’s instructions regarding disposition of such work and material. Within 30 days after receipt of such notice of termination or suspension, SELLER will submit all its claims pursuant thereto. BUYER will have the right to check such claims at any reasonable time by inspecting and auditing the records, facilities, work or materials of SELLER relating to the Purchase Order.
15.2 In the event BUYER terminates or suspends the Purchase Order in whole or in part as provided in this section, BUYER may procure, upon such terms as are reasonable, supplies or services like those so terminated, and SELLER shall be liable to BUYER for any excess cost incurred for such similar supplies or services. SELLER shall continue the performance of the Purchase Order to the extent not terminated or suspended under the provisions of this clause.
15.3 BUYER will pay SELLER the Purchase Order price for finished work, and the cost to SELLER (excluding profit or losses) of then work in-process for BUYER and raw material already purchased for BUYER than cannot be resold, less the value of any defective, damaged or destroyed work or material. BUYER will make no payments for finished work, work in-process or raw material fabricated or procured by SELLER more than BUYER’s written request. Payment made under this clause will constitute BUYER’s only liability in the event this Agreement is terminated or suspended as provided herein. The provisions of this clause will not apply to any termination or suspension by BUYER for default by SELLER or for any other cause allowed by law or under this Purchase Order.
15.4 If BUYER terminates the Agreement due to lack of performance by the SELLER, no further payment shall be recovered by the SELLER upon termination of the Purchase Order.
15.5 If SELLER’s personnel attend BUYER’S site, facilities or other premises, SELLER’s personnel shall be appropriately qualified, skilled and experienced in their respective trades or occupations. BUYER may require SELLER to remove (or cause to be removed) any person employed on the site, facilities or premises, who in the BUYER’s opinion:
At the BUYER’s request, the SELLER shall appoint a suitable replacement person.
16.1 SELLER shall ensure that the goods comply with standards of good workmanship, the Purchase Order specifications and applicable laws and regulations. SELLER undertakes free of charge to repair all defects caused by faults in construction, materials or production, during a period of at least twelve months from the date of successful commissioning at the shipyard or eighteen months from the Ex-Works date of dispatch of the goods by SELLER, whichever is earlier. If the goods are not suitable for the intended purpose for a period owing to SELLER's default the warranty period shall be prolonged for a period corresponding to the time it has not been possible to use the goods for their intended purpose. If stated in the Purchase Order, SELLER shall be liable under a performance guarantee to correct and satisfy the requirements stated in the Purchase Order.
16.2 Parts which are replaced/repaired by the above warranty provisions shall have a renewed warranty period equal to the original warranty period.
16.3 SELLER undertakes under the above warranty that the goods shall at SELLER’s cost be rectified to comply with the Purchase Order or replaced by new goods as soon as possible and in any event no later than 14 days, or any other duration agreed by BUYER, after receipt of notice from BUYER.
17.1 Where fulfillment of this Purchase Order requires SELLER to perform work on the premises of BUYER, SELLER shall procure at its own cost and keep in force the following insurance, satisfactory to BUYER as to form and limits of liability, until completion and final payment hereunder:
17.2 SELLER shall indemnify and hold BUYER harmless against all liability, cost and expense (including, without limitation, BUYER’s costs of testing and inspection, court costs and reasonable attorney’s fees) because of claims or injuries to persons or damage to property based in whole or in part upon any act or omission of SELLER, its agents, employees and suppliers or as a consequence of any breach of SELLER’s warranties. Further, SELLER agrees to indemnify and hold BUYER harmless against all liability, costs and expense (including, without limitation, BUYER’s costs of testing and inspection, court costs and reasonable attorney’s fees) incurred by BUYER in connection with or related to any recall, inspection, testing, replacement or correction of the goods or any part or equipment into which the goods are incorporated, which results from or is related to, in whole or in part, a defect or alleged defect in the goods. SELLER shall furnish BUYER with insurance certification from SELLER’s insurance carrier showing that SELLER has comprehensive general liability insurance coverage, including products liability coverage, currently in force in an amount of not less than US$1,000,000 combined single limit bodily injury and property damage. Such certification shall also contain a vendor's endorsement showing BUYER as an additional insured vendor under SELLER’s insurance policies and shall provide for thirty days prior written notice to BUYER from SELLER's insurance carrier in the event of cancellation or termination of such coverage. The purchase of such insurance coverage or the furnishing of such certification shall not be deemed instead of SELLER's liability hereunder, nor shall it in any way modify SELLER’s indemnification of BUYER. SELLER may not settle or otherwise dispose of any indemnified claim without BUYER’s prior written consent.
17.3 Neither party shall be liable for indirect and consequential damages.
18.1 Shipment and delivery date(s) specified are of the essence of the Purchase Order. However, SELLER shall not be liable for delays in manufacture or delivery of goods and services, and BUYER shall not be liable to accept any part of such goods and services to the extent that such delays are due to causes beyond the reasonable control of the party (BUYER or SELLER) affected thereby, such as but not limited to acts of God, acts of civil or military authorities, fires, strikes, lockouts, floods, epidemics, war or riot, provided that the party affected thereby promptly notifies the other party of such event and uses its best efforts to remedy the situation, and, provided further, that in the case of any such event affecting SELLER, SELLER shall at the request of BUYER, allocate all available production, inventories and deliveries to BUYER.
19.1 Upon request, BUYER shall be entitled to obtain all necessary information from SELLER as stated under the Purchase Order such as, progress reports, information relating to SELLER’s suppliers, etc.
19.2 SELLER shall permit BUYER or BUYER's clients or suppliers to carry out such inspections as BUYER deems to be necessary. Inspections carried out by the BUYER shall not relieve the SELLER of its contractual responsibilities.
20.1 Proprietary rights to the goods, or parts of the goods, together with the technical documentation to be supplied by SELLER according to the Purchase Order passes to the BUYER on payment.
20.2 All drawings, specifications and other technical documentation which is transmitted by BUYER to SELLER shall remain the property of BUYER and shall not be copied or disclosed to any third party without the prior written consent of BUYER.
21.1 SELLER shall indemnify BUYER against any and all claims by third parties (including, without limitation, court costs and attorney's fees) in relation to any patent or intellectual property infringement by SELLER.
22.1 This Agreement is governed by and construed in accordance with the laws of BUYER’s principle place of business. To avoid any doubt, BUYER’s jurisdiction of formation (e.g., country of incorporation) or registered address for services of process do not determine where BUYER is based for the purposes of this section. BUYER’s principle places of business include:
Americas. If BUYER is based in North America, South America, or Central America and Mexico, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by and construed in accordance with the laws of the state of New York, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. SELLER agrees that state and federal courts in New York will have exclusive jurisdiction about any proceedings arising out of or about any agreement initiated by BUYER. BUYER will have the right to initiate any proceedings arising out of or about any Agreement in any court having jurisdiction.
Europe Middle-East Africa. If BUYER is based in Europe, Middle East, Or Africa, all claims (contract, tort, or otherwise) arising out of or relating to any agreements will be governed by the and construed in accordance in accordance with the laws of England and Wales, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. SELLER agrees that English courts will have exclusive jurisdiction about any proceedings arising out of or about any agreement initiated by BUYER. BUYER will have the right to initiate any proceedings arising out of or about any Agreement in any court having jurisdiction.
Australia Pacific. If BUYER is based in Australia, New Zealand, or elsewhere in the Asia Pacific region, all claims (contract, tort, or otherwise) arising out of or relating to any agreements will be governed by the and construed in accordance in accordance with the laws of Western Australia, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. SELLER agrees that Western Australian courts will have exclusive jurisdiction over any proceedings arising out of or about any agreement initiated by BUYER. BUYER will have the right to initiate any proceedings arising out of or about any Agreement in any court having jurisdiction.
22.2 In the event of any dispute, claim, question, or disagreement arising from or relating to any Purchase Order or the breach thereof, the parties shall use their best efforts to settle the dispute, claim, question, or disagreement through a meeting of executives of each party, without legal counsel present. Such meeting must occur within thirty days of receipt of notice of such dispute, claim, question, or disagreement. Such meeting may occur via telephone if both parties agree. The parties shall memorialize the results of such meeting in writing.
23.1 Either party (“Disclosing Party”) may disclose its confidential or proprietary information (“Confidential Information”) to facilitate performance of the Agreement. The party receiving such information (“Receiving Party”) agrees (1) not to disclose the Confidential Information to anyone other than those of its employees (or those of BUYER’S affiliates) with a need to know the same, except as the Disclosing Party may otherwise agree in writing; (2) to use the same degree of care as it uses to protect its own confidential information (but in no case less than reasonable care) in protecting the Disclosing Party’s Confidential Information; (3) not to copy or reverse engineer any Confidential Information disclosed under the Agreement; (4) not to remove any ownership or confidentiality notice contained within the Confidential Information; (5) to promptly report to the Disclosing Party any actual or suspected breach of this Article; and (6) to take all reasonable steps requested by the Disclosing Party to prevent, control, or remedy any breach of the Agreement.
23.2 The obligations under the Agreement shall not extend to Confidential Information that the Receiving Party can demonstrate via written records:
23.3 Receiving Party’s confidentiality obligations under the Agreement shall survive for a period of sixty months following termination of the Agreement.
23.4 Confidential Information is provided “AS IS.”
23.5 The parties understand that by disclosing the Confidential Information to the Receiving Party, the Disclosing Party does not grant any express, implied, nor other licensing right to use the Confidential Information except as necessary to perform Receiving Party’s duties under the Agreement.
23.6 The Receiving Party shall comply with all laws, rules, and regulations applicable to the export of the Confidential Information. Furthermore, the Receiving Party shall not export nor re-export such Confidential Information without any applicable approval or license required under such laws, rules, and regulations.
23.7 Upon the written request of the Disclosing Party, the Receiving Party shall return or destroy all Confidential Information, including all notes and analyses created from information contained in the Confidential Information. Furthermore, the Receiving Party shall provide the Disclosing Party with a written statement certifying that the Confidential Information has been returned or destroyed. Notwithstanding the above, the Receiving Party may retain one copy of the Disclosing Party’s Confidential Information in a secure location within the Receiving Party’s legal department solely for evidentiary purposes. Such copy shall remain expressly subject to the provisions of the Agreement.
24.1 Save where otherwise expressly provided otherwise in the Agreement, all claims by the SELLER upon the BUYER for costs, damages, price variation, extensions of time or a financial nature, however, expressed, shall be notified in writing not later than thirty calendar days after the circumstance or event giving rise to the claim unless such claim could not be discovered at the time of such circumstances or event through reasonable due diligence, in which case notice must be given within thirty calendar days after the notifying party becomes aware of such claim. The notice shall give reasonable details of the claim and full details of the claim shall be provided within a further fourteen days from the date of the notice.
24.2 The details shall specify the relevant clause or another basis of the claim and shall include substantiation of the amount and extension to which SELLER considers itself to be entitled to relating to the Agreement. Compliance with this clause shall be a condition precedent to SELLER’S entitlement to any claim.
24.3 If BUYER considers itself to be entitled to any payment under any clause of this Agreement, BUYER shall give notice and details to SELLER. The notice shall be given as soon as practicable after BUYER becomes aware of the event or circumstances giving rise to the claim.
24.4 The details shall specify the relevant clause or another basis of the claim and shall include substantiation of the amount to which BUYER considers itself to be entitled relating to this Agreement.
24.5 In respect of BUYER’s entitlement under Clause 25.3, BUYER may deduct this amount from any monies due, or to become due, to the SELLER. Also, BUYER shall be entitled to deduct from monies due, or to become due to SELLER, all costs, expenses, and damages for which BUYER may become liable to third parties because of any act, omission or default of SELLER under this Agreement
25.1 Export Controls & Sanctioned Countries: Company acknowledges and agrees to comply with all U.S. export control laws and any other applicable export/import control laws. Without limiting the foregoing, in no instance may Services be used in or Equipment imported into the following countries without the express written consent of BUYER, which will only be provided upon a showing to BUYER’s discretionary satisfaction that the proposed use or importation is licensed or otherwise authorized by the applicable U.S. government authority: Cuba, Iran, Syria, Sudan, and North Korea.
25.2 Privacy: SELLER warrants that SELLER will obtain, whenever required under applicable law, legally binding, effective, and transferable consent sufficient for collection and processing of information that can, either alone or in combination with other information, be used to identify an individual (“Personal Data”) by BUYER in conjunction with the Network Services provided hereunder and subject to all other terms governing the handling of Personal Data as set forth in the Agreement. SELLER and BUYER agree that (a) SELLER will transfer the consent to BUYER, as necessary, (b) consent obtained in accordance with this provision shall not exceed the scope and duration necessary to complete the performance under the Agreement, and (c) while performing the Agreement, BUYER will not exceed the limitations of the consent.
25.5 Legal & Anti-Corruption Compliance: Both BUYER and SELLER will fully abide by all applicable laws, rules, and regulations, including, without limitation, all applicable anti-bribery, anti-corruption, and anti-boycott laws including, without limitation, United States Foreign Corrupt Practices Act, UK Bribery Act, and the Organization for Economic Co-operation and Development’s Anti-Bribery Convention and Anti-Boycott Regulations. BUYER will not pay any commissions or fees nor grant any rebates to any of SELLER’s employees or officers, nor favor any of SELLER’s employees or officers with gifts or entertainment of other than nominal value, nor enter into business arrangements with any of SELLER’s employees or officers, other than as SELLER’s representative, without SELLER’s prior written approval.
25.6 Violations: If BUYER reasonably believes that SELLER has violated any term in this “Compliance” section, including, without limitation, investigation of SELLER by any law enforcement or regulatory agency, BUYER may upon immediately suspend Service or terminate the Agreement or any portion thereof without liability.