GENERAL TERMS AND CONDITIONS
PURCHASE OF GOODS / EQUIPMENT/ MATERIALS
TABLE OF CONTENTS
ARTICLE - 1
- 1. DEFINITION
- 2. INTERPRETATION
- 3. FORM OF PURCHASE ORDER AND AMENDMENTS
- 4. AUTHORITY OF PERSON SIGNING DOCUMENTS
- 5. RESPONSIBILITY FOR PERFORMANCE OF PURCHASE ORDER
- 6. RESPONSIBILITY FOR COMPLETENESS
- 7. PURCHASE ORDER AND REFERENCE DOCUMENT
- 8. ACCEPTANCE
- 9. INSURANCE AND TAXES
- 10. PROPERTY AND RISK
- 11. FREE ISSUE MATERIALS
- 12. ACCEPTANCE OF PURCHASE ORDER
- 13. GUARANTEES/ WARRANTIES
- 14. PERFORMANCE
- 15. ROYALTIES AND PATENTS
- 16. SCHEDULE
- 17. LIQUIDATED DAMAGES FOR LATE DELIVERY (LD)
- 18. INDEMNITY
- 19. PAYMENT BY THE SUPPLIER AND LIENS
- 20. ASSERTION OF RIGHTS
- 21. ASSIGNMENTS AND BANKRUPTCY
- 22. COMPLIANCE WITH SPECIFICATIONS
- 23. DRAWINGS
- 24. PROPERTY OF DRAWINGS AND INFORMATION
- 25. QUALITY ASSURANCE
- 26. QUALITY CONTROL
- 27. EXPEDITING AND INSPECTION
- 28. CHANGES IN GOODS SUPPLIED
- 29. DELIVERY
- 30. RECEIPT
- 31. VENDOR MANUALS
- 32. SUPERVISION OF INSTALLATION
- 33. RIGHTS NOT WAIVED BY PAYMENT OR CERTIFICATE
- 34. TERMINATION OF PURCHASR ORDER
- 35. FORCE MAJEURE
- 36. ARBITRATION
- 37. GOVERNING LAWS
- 38. REMEDIES
- 39. CONFIDENTIALITY
As used herein and in any PURCHASE ORDER documents, the following words shall have the following meanings:
1.1 “THE PURCHASER” shall mean AMIANTIT PIPE SYSTEMS SRL having its registered office at 4 CLOPOTARII VECHI STREET, SECTOR 1, BUCHAREST, ROMANIA, and shall, unless excluded or repugnant to the context or meaning thereof, be deemed to include its successors and assigns.
1.2 “SUPPLIER” shall mean the person, firm or body corporate contracting with PURCHASER for the supply of any GOODS, as called for by the PURCHASE ORDER and shall be deemed to include SUPPLIER’s successors (Approved by PURCHASER and CONSULTANT) representatives’ heirs, executors and administrators, unless otherwise excluded by the PURCHASE ORDER.
1.3 “SUBSUPPLIER” shall mean the person, firm or body corporate contracting directly with SUPPLIER and not PURCHASER, to furnish SUPPLIER with any portion of the GOODS, as hereinafter defined, other than the purchase of “off-the-shelf “ items or prefabricated machinery or supplies. SUPPLIER shall remain fully liable for the work so subcontracted, as well as for all acts and/or omissions of SUBSUPPLIERS.
1.4 “CONSULTANT” shall mean the firm or body corporate designated in writing by PURCHASER to act on PURCHASER’s behalf with respect to all PURCHASE ORDERs entered into by the PURCHASER.
1.5 “INSPECTOR” shall mean authority or person nominated by PURCHASER to periodically carry out inspection of the GOODS in accordance with stipulated conditions as laid out in the PURCHASE ORDER and to also ascertain status of manufacturing of the GOODS.
1.6 “PURCHASE ORDER” shall mean the PURCHASER’S PURCHASE ORDER together with ANY Special Terms & Conditions, these General Conditions of Purchase and all documents, drawings, and SPECIFICATIONS attached to or referred to in the PURCHASE ORDER.
1.7 “PURCHASE ORDER AMENDMENT” shall mean the duly authorized amendment issued in writing to the SUPPLIER by the PURCHASER to amend the PURCHASE ORDER.
1.8 “GOODS” shall mean and include any and all work, supervision, services, material, machinery, equipment, spares, tools, supplies, GOODS shall be complete in all respects to comply with performance parameters stipulated in PURCHASE ORDER and facilities to be provided by the SUPPLIER in accordance with the PURCHASE ORDER.
1.9 “PURCHASE ORDER DRAWINGS” shall mean all drawings, documents and data that are listed in the PURCHASE ORDER.
1.10 “SPECIFICATIONS” shall mean and include the schedules, detailed designs, statements of technical data, performance and characteristics etc., specifying the requirements and descriptions of the equipment and material to be furnished under the PURCHASE ORDER.
1.11 “Approval” shall always mean, written approval, given by a duly authorized person on behalf of PURCHASER.
1.12 “As Approved” “Approved Earlier”, “As Directed” or similar words or terms used herein shall be understood to mean “Approved”, “Directed” etc., by PURCHASER/ CONSULTANT/AUTHORIZED AGENCY.
1.13 “Satisfactory” shall mean satisfactory to PURCHASER / CONSULTANT.
1.14 “Particulars” shall mean and include:
b. Drawings, and
c. Any proprietary mark or designated patent denoting the product of an individual, firm or body corporate.
1.15 “OR EQUAL” shall mean in reference to a proposed substitution by the SUPPLIER that the proposed substitution shall be equally acceptable to the PURCHASER/CONSULTANT and the PURCHASER/CONSULTANT shall be the sole judge of its acceptability.
1.16 “WRITTEN NOTICE” shall mean any manuscript, type written or printed statement or other document under hand or seal and includes telegrams, telexes, cables and telefax transmission or any document duly signed by a person legally authorized to represent the party to be bound thereby.
1.17 “DELIVERY DATE” shall mean the date or dates specified in the PURCHASE ORDER for complete delivery of GOODS and/or documents at site.
1.18 “EFFECTIVE DATE” shall mean the date of the PURCHASE ORDER.
1.19 “PERIOD OF TIME” shall mean calendar days. The time within which activities are to be carried out shall be computed by excluding the first and including the last day of any stated period of days. If the last day is a Sunday or legal holiday, the activity shall be completed on the next business day.
1.20 “CALENDAR Days” shall mean consecutive days without interruption for weekends or holidays and shall include the day on which the notice/request is received.
1.21 “SITE” shall mean the place envisaged by PURCHASER, at which the GOODS are to be supplied, erected, commissioned and operated, or any designated place in the PURCHASE ORDER.
1.22 “PURCHASE ORDER PRICE” shall mean the price, as stipulated in the PURCHASE ORDER, to be paid by PURCHASER to SUPPLIER and shall represent the full compensation payable by PURCHASER to SUPPLIER for supply of GOODS and satisfactory compliance of all the SUPPLIER’s obligations under the PURCHASE ORDER.
1.23 “SUPERVISION” shall mean the performance in SITE of supervisory and advisory services for the installation, erection, tests and start-up and commissioning of the GOODS supplied under the PURCHASE ORDER by the SUPPLIER.
1.24 “WARRANTY PERIOD” shall mean the time period as specified in Article 13.1.4 hereunder, during which equipment warranties specified in Article 13 shall be in force.
1.25 “PERFORMANCE TEST” shall mean the test or series of tests to be carried out as stipulated in Special Terms & Conditions or in absence thereof the Standard Test, as per the normal business practice for similar goods.
1.26 “PERFORMANCE GUARANTEES” shall mean the guarantees specified in Special Terms & conditions, to be achieved by the GOODS, during the Performance Test.
1.27 “EXW, or FCA, or FAS, or FOB, or CFR, or CIF, or CPT, or CIP, or DAF, or DES, or DEQ, or DDU, or DDP, or trade terms of like nature” shall have the meaning ascribed to them in Incoterms of International Chamber of Commerce in force as at the date of the PURCHASE ORDER.
ARTICLE - 2
2.1 The cross headings and subtitles and the lists of them in the PURCHASE ORDER are included solely for convenience and shall not be deemed to be part of it and shall not affect the meaning or operation of the PURCHASE ORDER.
2.2 Words denoting persons shall include firms, companies, corporations, associations or bodies of individuals, whether incorporated or not. Words denoting masculine gender or singular number shall also include the feminine gender and plural number and vice versa where the PURCHASE ORDER so requires or permits. The words “including” and “include(s)” as used herein are not to be construed as words of limitation unless the context otherwise appears in the matter.
2.3 Reference in any document forming part of the PURCHASE ORDER to “VENDOR” or SELLER shall be deemed to mean SUPPLIER and references to the work shall be deemed to mean the “GOODS”.
2.4 Should there be any conflict, discrepancy or inconsistency between or amongst these General Terms & Conditions, Special Terms & Conditions and other documents or drawings then interpretation shall be based on following priorities so as to comply with the requirements of the PURCHASE ORDER.
• Special Terms Conditions
• These General Terms &Conditions
• Equipment SPECIFICATIONS
• General SPECIFICATIONS
2.5 Reference to any statute or statutory provision or statutory instrument includes reference to any amendment extension or re-enactment of same.
ARTICLE - 3
FORM OF PURCHASE ORDER AND AMENDMENTS
3.1 The PURCHASER shall not be liable for any orders or amendments other than those issued or confirmed on the PURCHASER’s printed PURCHASE ORDER form or PURCHASE ORDER amendment form. No substitutions of materials or additional charges of any kind or change in, or cancellation of or exception to any of the terms and conditions of the PURCHASE ORDER will be recognized unless confirmed on the PURCHASER’s printed PURCHASE ORDER form or PURCHASE ORDER amendment form duly signed by the PURCHASER’s authorized signatory. Delivery of GOODS or submission of SECURITY GUARANTEE by the SUPPLIER shall itself constitute an acceptance of the terms and conditions of the PURCHASE ORDER where acceptance has not previously been communicated to the PURCHASER.
3.2 The PURCHASER/CONSULTANT may make changes in the design SPECIFICATIONS or drawings, issue additions to or omissions from or otherwise vary the GOODS. The provisions of the PURCHASE ORDER shall apply to all such variations or amendments to the same extent and with the same effect as if originally set forth in the PURCHASE ORDER and the SUPPLIER shall proceed with all such variations or amendments when so requested by the PURCHASER/CONSULTANT in writing. The SUPPLIER shall not be entitled to any compensation for work additional to that specified unless written authorization to carry out such work has been issued or confirmed on the PURCHASER’s printed PURCHASE ORDER Form or PURCHASE ORDER Amendment Form duly signed by the PURCHASER. The value of all authorized variations or amendments shall be ascertained by measurement and by reference to the rates and Prices stated in the PURCHASE ORDER for like or analogous work but if there are no such rates and Prices or if the same are not applicable then such value shall be as is fair and reasonable in all circumstances and the PURCHASER shall have access to such SUPPLIER’s information as will prove this to be the case.
ARTICLE - 4
AUTHORITY OF PERSON SIGNING DOCUMENTS
A person signing any document forming a part of the PURCHASE ORDER on behalf of another shall be deemed to warrant that he has authority to bind such other person, firm or body corporate. Any person so signing shall submit satisfactory evidence of his authority.
ARTICLE - 5
RESPONSIBILITY FOR PERFORMANCE OF PURCHASE ORDER
The SUPPLIER is to be entirely responsible for the due performance of the PURCHASE ORDER and the GOODS in all respects according to the intent and meaning of the Particulars. If the SUPPLIER consists of more than one person, firm or corporation, their obligation under the PURCHASE ORDER shall be joint and several.
a. Any approval or information which PURCHASER and/or CONSULTANT and/or INSPECTOR may give in respect of the work or workmanship involved in the PURCHASE ORDER including modification at SITE (whether with or without tests having been carried out by the SUPPLIER or PURCHASER) shall not relieve the SUPPLIER from his responsibility under the PURCHASE ORDER.
b. Notwithstanding any approval or acceptance given by PURCHASER and/or CONSULTANT and/or INSPECTOR, it shall be lawful for PURCHASER and/or CONSULTANT to reject the GOODS or any part thereof at any time if it is found that the GOODS or any part thereof are not in conformity with the terms and conditions of the PURCHASE ORDER in all respects.
5.2 SUPPLIER shall be deemed to have carefully examined these General Terms & Conditions, Special Terms & Conditions, the Particulars, and other documents forming the PURCHASE ORDER and also to have satisfied himself as to the nature of the GOODS to be manufactured and/or supplied and other relevant matters, details and SITE conditions, if necessary.
5.3 SUB - LETTING OF PURCHASE ORDER
SUPPLIER shall not sublet, transfer or assign the PURCHASE ORDER nor any part thereof, without the express prior written approval of PURCHASER other than the purchase of bought-out items as per list submitted by the SUPPLIER normally purchased from outside sources.
In the event SUPPLIER contravenes this condition, PURCHASER shall be entitled to terminate the PURCHASE ORDER and to place the GOODS elsewhere at SUPPLIER’s risk and expense, and SUPPLIER shall be liable for any loss or damage which SUPPLIER may sustain in consequence or arising out of such replacing of the GOODS.
5.4 IMPORT LICENSE AND FOREIGN EXCHANGE
5.4.1 For supplies within European Union, the SUPPLIER shall arrange for his own import license and foreign exchange as necessary for any component to be imported and the PURCHASER will give necessary certificate that the GOODS are for PURCHASER’s use. The PURCHASER shall not grant extension of delivery for any delay in the issue of import license or other relevant Government approvals.
ARTICLE - 6
RESPONSIBILITY FOR COMPLETENESS
SUPPLIER shall be responsible for supplying the GOODS in accordance with the PURCHASE ORDER. Whether stipulated in Particulars or not, SUPPLIER shall, without additional charge, provide all equipment, fittings, materials, supplies and/or services which are necessary or useful for erection, commissioning and efficient operation of the GOODS provided in accordance with the PURCHASE ORDER and for full compliance of performance parameters stipulated therein.
ARTICLE - 7
PURCHASE ORDER AND REFERENCE DOCUMENTS
7.1 The PURCHASE ORDER contains the entire agreement between the SUPPLIER and the PURCHASER and no representation, inducement, promise or agreement shall be of any force of effect unless included in the PURCHASE ORDER.
7.2 The PURCHASE ORDER shall be interpreted as a whole.
7.3 The PURCHASE ORDER documents are complementary, and what is called for in any one shall be binding, as if called for by all.
7.4 Should an error or inconsistency appear in the PURCHASE ORDER, the SUPPLIER before proceeding further shall bring it to the attention of PURCHASER/ CONSULTANT in writing, who will promptly decide the intent and arrange for necessary corrections at PURCHASER’s/CONSULTANT’s discretion.
7.5 In case of conflict between the drawings and SPECIFICATIONS the latter shall govern; but the SUPPLIER shall bring such conflict immediately to the attention of the PURCHASER/CONSULTANT for rectification at PURCHASER’s/CONSULTANT’s discretion.
7.6 The drawings and SPECIFICATIONS shall be interpreted in conformity with the PURCHASE ORDER.
7.7 The official language for this PURCHASE ORDER shall be English. All documents shall be submitted in the English language. Operating, maintenance and start up manuals shall be supplied in English.
ARTICLE - 8
Should the GOODS fail to conform with the PURCHASE ORDER, whether by reason of not being of the quality or in the quantity or measurement stipulated or being unfit for the purpose for which they are require, the PURCHASER/CONSULTANT shall have the right, after allowing the SUPPLIER the opportunity to correct the non-conformance, to reject the GOODS within a reasonable time of their delivery and inspection and to purchase elsewhere and to claim for any additional expense incurred, without prejudice to any other right which the PURCHASER may have against the SUPPLIER. The making of any prior payments by the PURCHASER shall not prejudice PURCHASER’s right of rejection.
ARTICLE - 9
INSURANCE AND TAXES
9.1 The SUPPLIER shall provide, maintain and pay for such insurance, as will protect the GOODS and his plant, equipment, materials, tools, etc. until the GOODS are delivered in accordance with the PURCHASE ORDER, and for any insurance for his supervisory or other personnel, who may be required to travel to and work at the SITE for the execution of the SUPPLIER’s obligations under the PURCHASE ORDER.
9.2 The SUPPLIER hereby waives all rights of recovery from PURCHASER in connection with its properties and the properties of its personnel while working in SITE and travelling to and from the SITE. SUPPLIER shall cause its insurance policy under Article 9.1 to provide for a waiver of subrogation in favor of PURCHASER.
9.3 TAXES AND DUTIES
9.3.1 All taxes, duties and local levies payable and charged by Government or local bodies of countries other than Romania will be borne and paid by SUPPLIER. The SUPPLIER shall submit a certificate regarding country of origin and copy of Export License, if applicable.
9.3.2 A local SUPPLIER shall be entirely responsible for all taxes, duties, license fees etc. incurred until delivery of GOODS to the PURCHASER.
ARTICLE - 10
PROPERTY AND RISK
The GOODS shall become the property of the PURCHASER either:
i) when the GOODS have been delivered in accordance with the trade term specified in the PURCHASE ORDER, or
ii) when a progress payment has been made in respect of the GOODS prior to aforesaid delivery.
In either event the risk in the GOODS shall remain with the SUPPLIER until the GOODS are delivered to the PURCHASER pursuant to the trade term specified in the PURCHASE ORDER.
ARTICLE - 11
FREE - ISSUE MATERIALS
11.1 When material is provided to the SUPPLIER on a free-issue basis, the SUPPLIER undertakes to replace at its own expense any such material scrapped in excess of any scrap allowance given. All free-issue material shall remain the PURCHASER’s property and all work done thereon shall immediately vest in the PURCHASER.
11.2 All such property shall be deemed to be in good condition when received by or on behalf of the SUPPLIER unless the SUPPLIER otherwise notifies the PURCHASER/ CONSULTANT within fourteen (14) days of receipt.
11.3 The SUPPLIER is required to maintain separate records of receipts and disposals for audit purposes.
ARTICLE - 12
ACCEPTANCE OF PURCHASE ORDER
The SUPPLIER accepts the PURCHASE ORDER in full along with all terms and conditions stipulated therein by signing and returning the acknowledgment copy of the PURCHASE ORDER.
ARTICLE - 13
13.1 EQUIPMENT WARRANTIES
13.1.1 The SUPPLIER warrants that the quality of GOODS supplied/to be supplied under this PURCHASE ORDER shall be in accordance with the PURCHASE ORDER and the specified standards and show the utmost skill, diligence and competence in workmanship.
13.1.2 SUPPLIER warrants that such GOODS will meet the requirements of, and be in conformity with all applicable laws, rules, regulations and ordinances of the government of Germany, or any subdivision thereof.
13.1.3 The SUPPLIER warrants that the GOODS under this PURCHASE ORDER will be new and of recent manufacture, of specified quality and free of all defects and all malfunctions, including latent defects, and compete and fit for the use for the specific purpose for which they are purchased and that they are in strict accordance with the drawings and SPECIFICATIONS, and all relevant codes as applicable to the GOODS in Germany.
13.1.4 The equipment warranty shall extend over a period of eighteen (18) months from the date of which the GOODS are successfully commissioned into operation or thirty (30) months from date of delivery whichever occurs earlier. If repairs or replacements are necessary warranty will be extended/renewed for further period of (12) months from the date of such repair/replacement.
13.1.5 Application of the equipment warranty. If any fault, defect or nonconformity is discovered by PURCHASER/ CONSULTANT/SUPPLIER or any other Agency during the warranty period, the SUPPLIER shall take or arrange for all measures necessary to correct, or have corrected, any and all defects, or to replace or have replaced the defective parts (the decision regarding replacement/repair shall be at PURCHASER’s discretion) with the greatest diligence and at the SUPPLIER’s expense to the full satisfaction of PURCHASER/CONSULTANT. The SUPPLIER shall also provide supervision as required and accept charges for the dismantling and re-assembly of work on SITE. All transport costs for the parts to be repaired or replaced will be paid by the SUPPLIER.
Failing prompt and sufficient action on the part of the SUPPLIER, PURCHASER reserves the right to effect or arrange for all of the necessary work at the SUPPLIER’s risk and expense. PURCHASER shall have the right to recover such costs from the SUPPLIER.
Supplier’s liability in respect of aforesaid rectification/replacement shall be unlimited without exception.
13.2 WARRANTY RELATING TO SPARE PARTS
13.2.1 The SUPPLIER warrants that it will maintain and make available or provide on request, for a period of ten (10) years from the date of successful commissioning of the GOODS, a supply of consumable parts, and spare and replacements parts for the equipment and material covered by the PURCHASE ORDER, at reasonable Prices and within reasonable time, and that after the ten (10) year period it will provide nine (9) months notice of any item becoming obsolete. The SUPPLIER shall also provide suitable Drawings/Design for such parts so that the PURCHASER can arrange for manufacture such parts.
ARTICLE - 14
The performance test, as defined in the PURCHASE ORDER, shall be carried out after the equipment is installed at SITE. On completion of the test, PURCHASER/ CONSULTANT will decide if there is compliance to the performance test or not.
14.1 On compliance with the performance requirements, PURCHASER/CONSULTANT will issue the equipment acceptance certificate in writing.
14.2 In case of non-compliance with the Performance tests, the following will apply:
a. The SUPPLIER, in consultation with PURCHASER/CONSULTANT will decide on the appropriate action to be taken in order to rectify the defect. SUPPLIER shall make best efforts to carry out the corrective action in the most expeditious manner.
b. If Performance Guarantees are not achieved, in part or full, even after lapse of Performance Test Period specified in the PURCHASE ORDER, the Performance test shall be deemed unsuccessful and the SUPPLIER liable to pay the liquidated damages as may be specified in Special Terms & Conditions.
c. If the Performance parameters achieved are less than the minimum acceptable levels, as specified in the SPECIFICATIONS, then the GOODS will be considered as rejected and the SUPPLIER shall be liable to pay back the price of such goods to the PURCHASER.
d. During the period where the SUPPLIER is making efforts to correct non compliance with Performance Guarantees, PURCHASER will be entitled to the full use of the equipment at the reduced performance level available then. This utilization of the equipment will not change the nature and/or the parameters set in the test to determine the performance of the equipment and the SUPPLIER remains responsible to correct the case of noncompliance by either adding, modifying or replacing whatever is necessary to comply with the performance test requirements.
e. In the event of first performance test not being successful, the cost of conducting subsequent performance tests, to be limited to mutually agreed number, will be borne by the SUPPLIER.
ARTICLE - 15
ROYALTIES AND PATENTS
15.1 The SUPPLIER represents and warrants:
1. That the GOODS provided under the PURCHASE ORDER and the sale or use of them does not infringe, directly or indirectly, on any patent, copyright or trademark, foreign or domestic owned or controlled by any third party and
2. That the SUPPLIER shall at its, own expense, defend, indemnify and hold PURCHASER and its subsidiaries and associated companies harmless from and against any and all present and future claims, based on or arising out of any alleged or actual infringement thereof, and
3. That the SUPPLIER will promptly pay, on PURCHASER’s demand, all losses, expenses, costs, damages, liabilities and judgment suffered or incurred by PURCHASER arising from said claims and/or infringement, without any limitations or restrictions.
ARTICLE - 16
Completion of supplies of GOODS within Delivery Date is essence of the PURCHASE ORDER, and is the prime responsibility of SUPPLIER.
ARTICLE - 17
LIQUIDATED DAMAGES (LD) FOR LATE DELIVERY
In the event the SUPPLIER fails to deliver the GOODS in accordance with the Delivery Date (s), PURCHASER reserves the right to:
a) recover from the SUPPLIER as LD any amount up to the maximum amount as provided in the PURCHASE ORDER.
b) Purchase elsewhere, without notice to SUPPLIER at the risk and cost of the SUPPLIER, either all the materials or the balance materials yet to be supplied.
c) Cancel the PURCHASE ORDER or the portion thereof in default, and if so desired, to purchase the defaulted materials elsewhere at the risk and cost of SUPPLIER.
ARTICLE - 18
The SUPPLIER agrees to hold harmless and indemnify PURCHASER and its representatives or agents as well as subsidiaries affiliated and associated companies and employees of any one of them from and against all claims, suits, summons, judgment and awards (including all legal expenses or costs) which may result from the execution of this PURCHASE ORDER by the supply up to and including the acceptance of the GOODS. The SUPPLIER assumes all risks of damage or injury to the SUPPLIER’s own property or personnel from whatever cause.
ARTICLE - 19
PAYMENT BY THE SUPPLIER AND LIENS
19.1 The SUPPLIER shall be fully responsible for all payments in relation to his sub-vendors as no contractual relation whatsoever shall exist between any sub-vendor and PURCHASER.
19.2 The SUPPLIER agrees to pay, discharge and hold PURCHASER harmless from all liens, claims, suits, including but not limited to counsel fees and other expenses of suits or judgment and award of sub contractors, (which includes material, men, supplies, labourers and others) which may, whether before or after final payment is made to the SUPPLIER arise out of or have any connection with the GOODS. The SUPPLIER shall, whenever PURCHASER requests, furnish PURCHASER with proof satisfactory to PURCHASER that all such liens, claims, suits, judgment and awards have been satisfied and released. In emergencies PURCHASER shall also have the right to pay directly to any sub-vendor, subcontractor or material sub-supplier any sum due or become due from the SUPPLIER to such sub-vendor, subcontractors or material sub-supplier for performing or furnishing any work, labor, material, supplies, tools, equipment or other things used, or intended for use, in connection with the execution of this PURCHASE ORDER and PURCHASER may charge any or all such payments to the SUPPLIER’s account.
19.3 The SUPPLIER agrees to accept exclusive liability for the payment of any payroll taxes, holiday pay or contributions for unemployment insurance or old age pensions or annuities which are measured by true wages, salaries or other remuneration paid to the SUPPLIER’s employee and sub-vendor/sub-suppliers.
19.4 The SUPPLIER agrees to comply with all laws and orders and regulations of public authorities relating to rates of wages, hours of labour and other similar or dissimilar matters which may be binding upon the SUPPLIER in connection with any work or PURCHASE ORDER for or in connection with which the GOODS, labour, material, supplies, tools, equipment or other things to be performed or furnished by the SUPPLIER under this PURCHASE ORDER or are intended to be used.
The SUPPLIER further certifies that all equipment and material provided under this PURCHASE ORDER shall have been produced and sold in compliance with applicable requirements of labour legislation as amended, and of regulations or orders issued there under in the country of manufacture. SUPPLIER shall indemnify PURCHASER from all liabilities arising out of this PURCHASE ORDER.
ARTICLE - 20
ASSERTION OF RIGHTS
Failure by either party to assert any of his rights under the PURCHASE ORDER shall not be construed as a waiver thereof.
ARTICLE - 21
ASSIGNMENT AND BANKRUPTCY
21.1 This PURCHASE ORDER shall be binding on and inure to the benefit of the PURCHASER and the SUPPLIER and to their respective heirs, executors, administrators, successors and assigns, but the SUPPLIER shall not assign this PURCHASE ORDER or any portion thereof, or any benefit or money accruing to it there under, without the prior written consent of the PURCHASER.
21.2 The GOODS shall not be or be deemed to be an asset in a bankruptcy, if the SUPPLIER, voluntarily or not, becomes or is declared bankrupt.
ARTICLE - 22
COMPLIANCE WITH SPECIFICATIONS
22.1 Whenever in the PURCHASE ORDER, any material, equipment, methods of fabrication or process is indicated or specified without qualification, and/or by catalogue number, such specifications shall be deemed to be used for the purpose of establishing a standard of quality and facilitating the description of the material equipment method of fabrication or process desired.
22.2 In such cases, the SUPPLIER may offer in writing to furnish another material, equipment or process to these specified in the PURCHASE ORDER which shall be substantially equal in every respect specified and the SUPPLIER shall submit all technical details for the proposed substitutions.
22.3 PURCHASER/CONSULTANT shall be the judge of the quality of the material, equipment, method of fabrication or process offered in substitution, and shall indicate approval or disapproval in writing within ten (10) working days of the SUPPLIER’s offer covering the substitution. This substitution approved by PURCHASER/CONSULTANT shall be deemed to be allowed by the words “Approved Equal”.
ARTICLE - 23
23.1 The SUPPLIER shall provide THE PURCHASER/CONSULTANT all drawings and documents required under the PURCHASE ORDER and in the quantities and within the times set out in the PURCHASE ORDER.
23.2 PURCHASER/CONSULTANT’s review and approval of drawings shall not relieve the SUPPLIER of responsibility to comply with the SPECIFICATIONS of the PURCHASE ORDER or for any errors or omissions on the part of the SUPPLIER.
ARTICLE - 24
PROPERTY OF DRAWINGS AND INFORMATION
All drawings and information exchanged by PURCHASER/CONSULTANT and the SUPPLIER shall become the property of PURCHASER, who shall not however, utilize or transmit the same to any other third party for any other purpose than those of the project.
ARTICLE - 25
25.1 QUALITY ASSURANCE SYSTEMS
SUPPLIER will be deemed to have allowed for quality assurance requirements as follows:
SUPPLIER shall be required to have implemented an effective Quality Assurance System in his organization preferably in accordance with the requirements set forth in ISO 9001, 9002 or 9003 as applicable or the latest equivalent.
SUPPLIER shall be responsible for the verification and approval of sub-supplier’s Quality Assurance System for compliance with the requirements as set forth above. This verification and approval shall be documented in writing.
SUPPLIER’s sub-suppliers Quality Assurance System documents formulated specifically for this PURCHASE ORDER and approved by SUPPLIER may be subject to verification and approval by PURCHASER/CONSULTANT prior to initiating work. The SUPPLIER will be responsible for ensuring its sub-suppliers are capable of complying with the requirements of this PURCHASE ORDER.
PURCHASER reserves the right to perform Quality Assurance Audits in order to verify at any time that SUPPLIER and its sub-supplier’s Quality Assurance System(s) meet(s) the requirements set forth herein and where applicable conforming ISO 9001, 9002, 9003 or the latest equivalent.
SUPPLIER’s Quality Assurance System must clearly state the corrective actions in case of deviations from specified requirements.
25.2 QUALITY ASSURANCE
SUPPLIER shall submit to PURCHASER/CONSULTANT within four (4) weeks after the order placement a Quality Assurance Plan, specifically prepared for this project, for review and approval.
25.3 REVIEW OF QUALITY ASSURANCE PROGRAMS
PURCHASER reserves the right to review SUPPLIER's quality assurance program to the extent deemed necessary by the nature of the service involved.
ARTICLE - 26
26.1 INSPECTION REQUIREMENTS
Material/equipment in this PURCHASE ORDER are subject to inspection by PURCHASER/CONSULTANT and/or by an appointed inspection agency. (PURCHASER will be responsible for the agency costs). However, PURCHASE ORDER Price includes the cost, if any, for witnessed tests and material inspection, as required in the requisition and/or the relative specifications.
Inspection procedures are laid down in the “Instructions for Inspection and Testing” document.
26.2 PROCEDURE FOR NONCONFORMANCE AND REPAIRS
SUPPLIER shall notify PURCHASER/CONSULTANT of any repair or procedure performed on non-conformance found during inspection or tests not witnessed by INSPECTOR in material that will form part of the GOODS to be delivered against the PURCHASE ORDER. This includes any repair or procedure for dealing with non-conformance in material supplied by sub-suppliers.
Any repair by SUPPLIER or its sub-supplier shall be made in accordance with the rules of the relevant specification(s).
INSPECTOR shall have full access to SUPPLIER’s documentation on such dispositions and repairs.
26.3 INTERMEDIATE AND FINAL INSPECTION
SUPPLIER is responsible for arranging of and bearing the cost for all intermediate and final (third party) inspection, with the exception of the INSPECTOR’s personal costs, which are for account of PURCHASER.
ARTICLE - 27
EXPEDITING AND INSPECTION
27.1 The PURCHASE ORDER shall be subject to expediting and inspection by PURCHASER/CONSULTANT or his authorized agents. PURCHASER’s expediters and INSPECTORS shall be allowed free access to the SUPPLIER’s and sub-vendor’s workshop and the SUPPLIER shall provide the means for such purpose during all phases of the work. The SUPPLIER shall make available to PURCHASER/ CONSULTANT/INSPECTOR a list of all sub-suppliers for material or work forming part of this PURCHASE ORDER and the scope of work/ supply of these sub-suppliers.
27.2 PURCHASER/CONSULTANT shall have the right to give SUPPLIER instructions relating to the timely preparation of and the SUPPLIER’s actual adherence to the SUPPLIER’s schedule, covering activities in engineering, issue of drawings and data, material acquisition, fabrication, assembly, inspection, testing and shipping.
27.3 PURCHASER/CONSULTANT shall be entitled at all reasonable times during manufacture to inspect and examine material and workmanship of any of the equipment.
27.4 The SUPPLIER shall carry out such inspection and tests of the equipment and material at the place of manufacture as is deemed necessary by PURCHASER/CONSULTANT for compliance with the PURCHASE ORDER and for compliance with all applicable codes and standards.
27.5 The SUPPLIER shall, at its own expense, provide such assistance, labour, material, electricity, fuel, stores, apparatus and instruments as may be required to carry out efficiently such shop tests.
27.6 The SUPPLIER shall give to PURCHASER/CONSULTANT written notes of not less than fifteen (15) days of the date and the place at which any equipment and material may be ready for inspection and/or testing PURCHASER/CONSULTANT or its agent may at PURCHASER’s/CONSULTANT’s discretion attend the inspection and/or testing.
27.7 When stipulated in the PURCHASE ORDER that the SUPPLIER is to provide a witness test, the SUPPLIER shall provide due notice to PURCHASER/CONSULTANT of the test date in accordance with the preceding Article 27.6 and the SUPPLIER shall arrange said test and not proceed with the work until said tests are witnessed by PURCHASER’s/CONSULTANT’s authorized agent or a written waiver is issued by PURCHASER/CONSULTANT.
27.8 The fact that any material or workmanship has been inspected by PURCHASER/CONSULTANT shall not release the SUPPLIER from the responsibility of making good any defects discovered after such inspection.
27.9 In the event of any defects becoming apparent during inspection and/or testing, the SUPPLIER shall, at his own expense, make good the defects discovered to the satisfaction of PURCHASER/CONSULTANT.
27.10 All GOODS rejected by PURCHASER/CONSULTANT as not in accordance with drawings, the SPECIFICATIONS and/or the PURCHASE ORDER, shall be replaced promptly by the SUPPLIER with other equipment and material or GOODS in accordance with the SPECIFICATIONS, drawings and/or the PURCHASE ORDER at the SUPPLIER’s expense.
27.11 Upon completion of fabrication and testing of the GOODS, the SUPPLIER shall provide PURCHASER/CONSULTANT with inspection results and reports and test certificates, certifying that the GOODS have been fabricated in accordance with the PURCHASE ORDER and have satisfactorily passed all required quality assurances and/or tests.
27.12 The SUPPLIER shall provide to PURCHASER/CONSULTANT a written notice of not less than ten (10) days, indicating the place at which the equipment or material is to be packed for shipment.
27.13 No equipment or material, belonging or not belonging to the SUPPLIER, shall be packed for shipment until a written order is requested from PURCHASER/CONSULTANT and received by the SUPPLIER, stating that the equipment and the material can be packed.
27.14 If any equipment or material, for any reasons whatsoever, has not been inspected during the fabrication or before packing, PURCHASER/CONSULTANT shall have the right to inspect such equipment and material at the final destination, or at the SITE, as the case may be, provided PURCHASER/CONSULTANT notifies the SUPPLIER of this intent to do so on his written order to proceed with the packaging.
ARTICLE - 28
CHANGES IN GOODS TO BE SUPPLIED
28.1 PURCHASER/CONSULTANT may, by WRITTEN NOTICE to the SUPPLIER, order extra work or make changes by altering, adding to or deducting from the GOODS. The PURCHASE ORDER Price may be then adjusted proportionately in accordance with the terms of the PURCHASE ORDER.
28.2 If the SUPPLIER claims that any instructions received from PURCHASER/ CONSULTANT justify additions/reductions to the PURCHASE ORDER Price, he shall give PURCHASER/CONSULTANT written notice within a period of (15) days after the receipt of such instruction, and in any event before proceeding to execute the works for GOODS to be supplied.
No such extra work for GOODS to be supplied shall be allowed or form the basis of any claim for compensation over and above, or in addition to, the PURCHASE ORDER Price specified herein, unless a detailed estimate of the cost is approved by PURCHASER/CONSULTANT.
28.3 In the event that any change or alteration in the GOODS results in a decrease of the work to be performed or material or equipment furnished, the PURCHASE ORDER Price shall be reduced accordingly and no allowance shall be made to the SUPPLIER for loss of anticipated profits on the GOODS omitted.
28.4 Notwithstanding any disagreements of disputes between the parties as to any of the provision of this Article 28, there shall be no interruption of the works for GOODS during the continuance of any dispute or disagreement.
28.5 CHANGE ORDER PROCEDURE
Upon approval of SUPPLIER’s written notice of extra work pursuant to Article 28.2 above by PURCHASER, the SUPPLIER shall proceed with such extra work and the cost and time effect of such extra work shall be jointly recorded by both the parties. At the completion of deliveries, the parties shall jointly review and arrive at a mutually acceptable solution to the extra Prices so involved. The basis of such extra Prices shall be material and labor charges incurred at cost plus 15% to cover overheads and profits. If no mutual solution is possible the matter shall then be referred to Arbitration in accordance with Article 36.
ARTICLE - 29
29.1 The SUPPLIER warrants that the GOODS shall be delivered in accordance with Delivery Date(s) and delivery term(s) specified in the PURCHASE ORDER.
29.2 The PURCHASER/CONSULTANT may require rescheduling of the agreed Delivery Date(s) and in such event the PURCHASER/CONSULTANT shall discuss the matter with SUPPLIER and any rescheduling will be after mutual agreement on the revised dates and other necessary changes to the PURCHASE ORDER in writing.
29.3 If applicable, all GOODS shall be accepted at SITE up to (12) noon of that calendar day and cargo/consignment received up to (12) o’clock shall be considered as arrived at (12) noon of that day. The cargo/consignment received after (12) noon of that day shall be considered as received on the next calendar day only. Thereafter, SUPPLILER shall provide (30) free hours for unloading by PURCHASER for normal (10) ton truck cargo.
ARTICLE - 30
30.1 Upon receipt of GOODS at the final destination, or the SITE, as the case may be, PURCHASER/CONSULTANT will inspect the packaging or damage or tampering.
If damage or tampering is evident, THE PURCHASER/CONSULTANT will advise SUPPLIER, within ten (10) days, of the nature and extent of the damage or tampering and SUPPLIER will have the option at its own expense to send a representative to examine the GOODS. The PURCHASER/CONSULTANT will at its option proceed to examine the GOODS within thirty (30) days to ascertain precise extent of any damage or shortage and in the absence of a representative from SUPPLIER, the PURCHASER’s/CONSULTANT’s report of such shortage/damage will be deemed accepted by the SUPPLIER.
30.2 The PURCHASER/CONSULTANT shall also inspect the GOODS received against the PURCHASER ORDER/Packing list as relevant, and short receipts, if any, shall be made good by the SUPPLIER at his cost. Notwithstanding such inspection and/or notification of short receipt shall continue to be the SUPPLIER’s responsibility for supply of GOODS complete in all respects for fulfilling stipulated performance parameters.
ARTICLE - 31
The SUPPLIER shall provide erection/commissioning, operating and maintenance instruction manuals as specified in the PURCHASE ORDER.
ARTICLE - 32
SUPERVISION OF INSTALLATION
Upon PURCHASER’s/CONSULTANT’s request, the SUPPLIER shall make available qualified supervisory personnel capable of performing the supervisory and advisory services for the installation of the equipment and material covered by the PURCHASE ORDER in the environment they will be called upon to work at the project site. The provision of such personnel shall be in accordance with “Provision of Services- Site Terms & Conditions” attached to the Purchase order.
ARTICLE - 33
RIGHTS NOT WAIVED BY PAYMENT OR CERTIFICATE
33.1 No certificate given or payment made by PURCHASER/CONSULTANT prior to the acceptance of the GOODS shall be considered as evidence of acceptance of GOODS, either wholly or in part.
33.2 No certificate and/or payment shall be considered as acceptance of defective GOODS or improper material and equipment or as relieving the SUPPLIER from its full responsibility and obligations as stipulated in the PURCHASE ORDER.
ARTICLE - 34
TERMINATION OF PURCHASE ORDER
34.1 TERMINATION BY PURCHASER
34.1.1 PURCHASER may, at any time, terminate this PURCHASE ORDER by giving to the SUPPLIER THIRTY (30) DAYS written notice. Such notice shall set forth the date of termination and the extent of the work to be performed by the SUPPLIER prior to such termination.
34.1.2 In the event of any such termination under preceding sub-Article 34.1.1, and within a period therefrom to be mutually agreed upon, PURCHASER shall pay to the SUPPLIER the value of all work done, plus the costs and expenses incurred by SUPPLIER in settling claims of sub-suppliers involved with the work (at direct cost), plus 5% allowance for profit on all such work completed until then.
34.1.3 PURCHASER shall be entitled to withhold from any amount due to the SUPPLIER under sub-Article 34.1.2, the amount of any claims PURCHASER may have against the SUPPLIER.
34.1.4 The SUPPLIER shall deliver to PURCHASER, as per terms mutually agreed upon, all equipment and material, in its then current location and state of completion and condition of the date of termination. The SUPPLIER shall not be obliged to retain in its plant any such equipment and material, for more than (180) days after such termination.
34.2 TERMINATION DUE TO BREACH OF PURCHASE ORDER CONDITIONS BY THE SUPPLIER
34.2.1 If the SUPPLIER is in breach of any provision of the PURCHASE ORDER, then PURCHASER may, by giving the SUPPLIER written notice, forthwith terminate this PURCHASE ORDER and take possession of GOODS, relating to this PURCHASE ORDER. In such case PURCHASER shall have the right to recover additional costs incurred to procure similar GOODS and without prejudice to any other remedy available under the PURCHASE ORDER.
34.3 TERMINATION IN CASE OF MERGER
34.3.1 In the event that the SUPPLIER has the intention to merge with another business entity and/or the SUPPLIER shall dissolve its entity, the SUPPLIER shall, as early as possible, prior to the date of the merger, advise PURCHASER in writing and shall identify and appoint the new business entity, the prior written agreement of PURCHASER as SUPPLIER under the PURCHASE ORDER.
34.3.2 The SUPPLIER shall make, prior to the merger, all legal and other arrangements necessary to the effect that the new business entity shall be fully responsible for all engagements, obligation and guarantees under the PURCHASE ORDER.
34.3.3 If PURCHASER does not accept the arrangements made, PURCHASER shall have the right to stop all payments and PURCHASER shall be discharged of all obligations towards the SUPPLIER, without prejudice to the financial compensation to which PURCHASER has the right to claim and or request for additional security which the PURCHASER may consider necessary.
34.4 TERMINATION IN CASE OF INSOLVENCY
34.4.1 PURCHASER may, at any time, by notice in writing, terminate the PURCHASE ORDER without additional compensation to SUPPLIER on the happening of any of the following events, that is to say:
- if the SUPPLIER shall at any time, before final shipment, be adjudged insolvent or enter into any arrangement or composition with his creditors, or suspend payment, or if the firm be dissolved under the partnership act, or
- if SUPPLIER, being a company, shall pass a resolution or a court shall make an order for the liquidation of its affairs.
ARTICLE - 35
35.1 Any delay in or failure of performance of this PURCHASE ORDER by either party hereto, shall not constitute defaults by such party or give rise to any claim for damages, if, and to the extent of such delay or failure of performance is caused by acts of God, war, invasions, revolution, civil commotion, flood, severe earthquake, typhoon, cyclones, plague and epidemic.
35.2 The Force Majeure referred to above shall not be extended to cover the work of sub-supplier(s) of the SUPPLIER.
35.3 The party so affected by an event of Force Majeure shall notify the other party of the occurrence thereof within fifteen (15) days of its commencement, specifying the matter constituting Force Majeure and with evidence of its adverse effect on performance of the PURCHASE ORDER.
35.4 Except as provided below, neither party shall by reason of any event of Force Majeure be entitled to terminate this PURCHASE ORDER, nor shall either party have any claim for damages against the other in respect of such non-performance or delay in performance.
35.5 Notwithstanding anything to the contrary stated herein, PURCHASER/ CONSULTANT shall have the right prior to the end of the event Force Majeure, to terminate the PURCHASE ORDER without compensation to SUPPLIER if the PURCHASE ORDER is suspended or likely to be suspended by the occurrence of Force Majeure for a period of more than sixty (60) days. In such an event the parties shall within the shortest time possible, meet to examine the incidence of the said occurrences and fix the conditions to fulfil the PURCHASE ORDER. In any event SUPPLIER will not be entitled to claim an increase in PURCHASE ORDER Price on this ground and account. Failing agreement, the party other than the one prevented from fulfilling its obligations, shall have the right to terminate the PURCHASE ORDER.
35.6 The obligations affected by a case of Force Majeure shall be automatically adjusted for a number of days equal to the period of the delay resulting from the Force Majuere.
ARTICLE - 36
36.1 Any claim dispute or controversy arising out of or relative to this PURCHASE ORDER, the activities performed hereunder, or the breach hereof, which within a reasonable time from receipt of first notice of the existence of such claim, dispute or controversy cannot be satisfactorily settled by mutual understanding between the parties, shall, whether or not both parties agree that such claim dispute or controversy exists, to be finally settled by arbitration at the request of either of the parties hereto.
36.1.1 The arbitration shall be submitted to the Court of International Commercial Arbitration of the Romanian Chamber of Commerce and Industry, in compliance with the Court Organization and operation rules, with the Court procedural rules, with art. 4 of the European Convention on International commercial arbitration, signed in Geneva, on April 21st, 1961. The arbitration place shall be the headquarters of the Court of International Commercial Arbitration of the Romanian Chamber of Commerce and Industry.
36.1.2 The arbitration shall be conducted by a panel of three (3) arbitrators with one (1) arbitrator being selected by PURCHASER/CONSULTANT and one (1) arbitrator selected by the SUPPLIER and the third selected by the two (2) arbitrators. On failure of the two Arbitrators, within thirty (30) days to name the third arbitrator, he shall be appointed by the President of the said Court of International Commercial Arbitration.
36.2 Such arbitration shall be conducted in the Romanian language and the law applicable to the merits of the case shall be the Romanian law in force.
36.3 The arbitration award shall be final and binding on the parties. Judgment thereon may be entered in any court having jurisdiction thereof for enforcement.
36.3.1 Responsibility of payment for all costs of arbitration, excepting counsel fees, shall be included in the arbitration award.
36.4 Neither party to this PURCHASE ORDER shall take any action or steps which will hinder, delay or otherwise interfere with the commencement of, or proceedings, in arbitration and hinder delay or otherwise interfere with the works, delivery of the GOODS to the extent possible.
36.5 Each party renounces all indirect, special and consequential damages such as those arising from shortfall in production and/or profit.
ARTICLE - 37
The PURCHASE ORDER shall be governed by and interpreted in accordance with the laws of ROMANIA. Any provision required being included in a PURCHASE ORDER of this type by any appropriate and valid law, ordinance, rule or regulation shall be deemed to be incorporated herein.
ARTICLE - 38
REMEDIES AVAILABLE TO PURCHASER
Notwithstanding anything stated elsewhere in these General Terms and Conditions, if the SUPPLIER:-
i) becomes bankrupt or goes in liquidation (other than voluntary liquidation for the purpose of amalgamation or reconstruction, or
ii) has an execution levied on its goods, or
iii) assigns the PURCHASE ORDER without the previous written consent of the PURCHASER, or
iv) has to the detriment of good workmanship or in defiance of the PURCHASER’s instruction to the contrary, subcontracts for any part of the works, or
v) repudiates or abandons the PURCHASE ORDER, or
vi) without reasonable excuse, fails to commence the work or suspends the progress of the work for (30) days after receiving written notice to proceed from the PURCHASER /CONSULTANT, or
vii) fails to remove or pull down or replace the materials after receiving notice from the PURCHASER/CONSULTANT that the said material has been condemned and rejected by them under the provisions of the PURCHASE ORDER, or
viii) is not executing the works in accordance with PURCHASE ORDER or is persistently or flagrantly neglecting to carry out his obligations,
then the PURCHASER may give reasonable notice period depending upon exigency in writing to the SUPPLIER, forthwith carry out the balance works and/or replace/repair/procure the GOODS at the sole risk and cost of the SUPPLIER. All expenses incurred by the PURCHASER in this respect will be to the account of the SUPPLIER without any limitation.
ARTICLE - 39
The SUPPLIER shall not divulge information concerning, or on, the PURCHASE ORDER and should keep all data confidential, except for information that has been made public by PURCHASER, or at the time of disclosure was in public domain.