International General Terms and Conditions of Purchase Tc-004 (12/09)
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INTERNATIONAL GENERAL TERMS AND CONDITIONS OF PURCHASE TC-004 (12/09) PART I – GENERAL PROVISIONS (e) Invoices shall be produced entirely in English and shall include the elements set forth in Exhibit A. 1. Acceptance of Purchase Order 3. Delivery; Notice of Delay Agreement by Seller to furnish the materials, products, or services hereby ordered, or its commencement of such performance, or (a) Time is of the essence and failure to deliver in accor- acceptance of any payment, shall constitute acceptance by Seller dance with the delivery schedule under this Purchase of this Purchase Order subject to these terms and conditions. In the Order, if unexcused, shall be considered a material event that this Purchase Order does not state price or delivery, breach of this Purchase Order. No acts of Buyer, Buyer will not be bound to any prices or delivery to which it has not including without limitation modifications of this Purchase specifically agreed in writing. Any terms or conditions proposed by Order or acceptance of late deliveries, shall constitute Seller inconsistent with or in addition to the terms and conditions of waiver of this provision. purchase herein contained shall be void and of no effect unless (b) Seller shall notify Buyer in writing immediately of any specifically agreed to by Buyer in writing. Modifications hereof or actual or potential delay to the performance of this additions hereto, to be effective, must be made in writing and Purchase Order. Such notice shall include a proposed signed by Buyer’s purchasing representative. These terms and revised schedule but such notice and proposal or Buyer’s conditions, together with any referenced exhibits, attachments or receipt or acceptance thereof shall not constitute a waiver other documents, constitute the entire agreement between the to Buyer’s rights and remedies hereunder. Parties with respect to the subject matter of this Purchase Order; 4. Termination for Convenience and supersede any prior or contemporaneous written or oral (a) Buyer may, by notice in writing, terminate this Purchase agreements pertaining to this Purchase Order. Order or work under this Purchase Order for convenience 2. Shipping Instructions and without cause, in whole or in part, at any time, and (a) Seller shall be responsible for ensuring adequate and/or such termination shall not constitute default. In the event compliant packaging of materials hereunder. No charges of partial termination, Seller is not excused from will be allowed for packing, crating, freight, local cartage, performance of the non-terminated balance of work under and/or any other services unless so specified in this the Purchase Order. Purchase Order. (b) In the event of termination for convenience by Buyer, (b) If Seller uses wood packaging materials such as pallets, Seller shall be reimbursed for actual, reasonable, crates, boxes, dunnages, cases, skids and pieces of substantiated and allocable costs, plus a reasonable profit wood used to support or brace cargo being imported into for work performed to date of termination. Any termination the United States, it shall be heat treated or fumigated settlement proposal shall be submitted to Buyer promptly, with methyl bromide in accordance with EPA label but no later than ninety (90) days from the effective date of instructions and include a mark that certifies the wood the termination. In no event shall the amount of any completed the required treatment under the “Guidelines settlement be in excess of the Purchase Order value. for Regulating Wood Packaging Material in International Buyer may take immediate possession of all work so Trade,” ISPM 15 of the International Standards of performed upon written notice of termination to Seller. Phytosanitary Measures (ISPM) and any associated 5. Termination for Default amendments, revisions or exemption identified by the (a) Subject to paragraphs (c) and (d) below, Buyer may, by U.S. Department of Agriculture, Animal and Plant Health notice in writing, terminate this Purchase Order in whole Inspection Service (APHIS). or in part at any time in the event that Seller breaches any (c) Seller shall at all times comply fully with Buyer’s written one or more of its terms, fails to make progress so as to shipping instructions and Incoterms 2000 reflected on the endanger performance of this Purchase Order, fails to Purchase Order. Unless otherwise directed, all items provide adequate assurance of future performance, shipped on the same day from and to a single location becomes insolvent, makes a general assignment for the must be consolidated on one bill of lading or airbill, as benefit of creditors, or files or has filed against it a petition appropriate. Seller shall submit all required shipping of bankruptcy or pursues any other remedy under any papers to Buyer prior to final payment. For material other law relating to the relief for debtors, or in the event a purchased F.O.B. origin, Seller shall not insure and not trustee or receiver is appointed for Seller’s property or declare a value except when transportation rates are “ ” business. In the event of partial termination, Seller is not based on released value, in which instance Seller shall excused from performance of the non-terminated balance annotate on the bill of lading the lowest released value of work under the Purchase Order. provided in applicable tariffs. (b) In the event of Seller’s default hereunder, Buyer may (d) Purchase Order number(s) must appear on all exercise any or all rights accruing to it, both at law, or in correspondence, shipping labels, and shipping equity. documents, including all packing sheets, bills of lading, (c) If this Purchase Order is terminated for default, Buyer airbills, and invoices. may require Seller to transfer title to, and deliver to Buyer, TC-004 (12/09) 1 of 16 TC-004 (12/09) (continued) as directed by Buyer, any (1) completed supplies, and (2) having jurisdiction thereof. The Arbitrator(s) award may partially completed supplies and materials, parts, tools, include compensatory damages against either Party. dies, jigs, fixtures, plans, drawings, information, and Under no circumstances will the Arbitrator(s) be author- contract rights (collectively referred to as “manufacturing ized to, nor shall they award punitive damages or materials” in this clause) that Seller has specifically multiple damages against either Party. The Arbitrator(s) produced or acquired for the terminated portion of this shall have the authority but not the obligation to award Purchase Order. Upon direction of Buyer, Seller shall also the costs of arbitration and reasonable attorney’s fees to protect and preserve property in its possession in which the prevailing Party; however, if the Arbitrator(s) do not Buyer has an interest. award such costs and fees, each Party will be (d) Buyer shall pay the Purchase Order price for completed responsible for its costs incurred in arbitration except that supplies delivered or services performed and accepted. the costs and fees imposed by the Arbitrator(s) for their Seller and Buyer shall agree on the fair and reasonable expenses shall be borne equally by the Parties. amount of payment for manufacturing materials delivered (c) Pending any final decision, or the settlement of any and accepted and for the protection and preservation of dispute arising under this Purchase Order, Seller shall the property. proceed diligently, as directed by Buyer, with perfor- 6. Force Majeure mance of the Purchase Order. (d) To the maximum extent permitted by law, the Parties ’ (a) Except for defaults of Sellers subcontractors at any tier, waive any right to a jury trial. neither Buyer nor Seller shall be liable for any failure to perform due to any cause beyond their reasonable control 8. Remedies and without their fault or negligence. Such causes (a) Except as otherwise provided herein, the rights and include, but are not limited to, acts of God or of the public remedies of both Parties hereunder shall be in addition to enemy, acts of the Government in its sovereign or their rights and remedies at law or in equity. Failure of contractual capacity, fires, floods, epidemics, terrorism, either Party to enforce any of its rights shall not constitute quarantine restrictions, strikes, freight embargoes, and a waiver of such rights or of any other rights and shall not unusually severe weather. In the event that performance be construed as a waiver or relinquishment of any such of this Purchase Order is hindered, delayed or adversely provisions, rights or remedies; rather, the same shall affected by causes of the type described above (“Force remain in full force and effect. Majeure”), then the Party whose performance is so (b) Buyer shall be entitled at all times to set off any amount affected shall so notify the other Party’s authorized owing at any time from Seller or any of its affiliated representative in writing and, at Buyer’s option, this companies to Buyer, against any amount payable at any Purchase Order shall be completed with such time by Buyer or any of its affiliated companies to Seller. adjustments to delivery schedule as are reasonably 9. Proprietary Rights required by the existence of Force Majeure or this Purchase Order may be terminated for convenience (a) Unless otherwise expressly agreed in a contemporan- pursuant to Section 4. eous or subsequent writing to the contrary or otherwise (b) Failure of any relevant government to issue any required expressly set forth in this Purchase Order and subject to import or export license, or withdrawal/termination of a Section 9(d) below, all specifications, information, data, required import or export license by such relevant drawings, software and other items supplied to Buyer by government, shall relieve Buyer of its obligations under Seller shall be disclosed to Buyer on a non-proprietary this Purchase Order, and shall relieve Seller of its basis and may be used and/or disclosed by Buyer without corresponding obligations.