Purchase terms and conditions
- 1.1 In this Agreement the following words and phrases shall have the following meaning:
Affiliate means in relation to a Party, any other entity which directly or indirectly controls, is controlled by, or is under direct or indirect common control with, that Party;
Agreement means the executed PO and these Standard Terms & Conditions;
Agreement Date means the date stated as such in the PO;
Anti-Bribery & Corruption Policy means the anti-bribery and corruption policy of Customer as may be communicated to Supplier;
Applicable Law means all national, state, local, municipal legislation, regulations, statutes, by-laws, consents and other laws and any other instrument having the force of law now or in the future (and any amendment or subordinate provisions) relating to or connected with the activities contemplated under this Agreement wherever located or performed;
Authorised Representative means the authorised representative of the Parties specified in the PO, or as may otherwise be notified in writing by one Party to another;
Charges means the amount payable by Customer to Supplier for the Deliverables, as set out in the PO;
Confidential Information means this Agreement and all information of any nature, in whatever form and however conveyed which a Party may have or acquire before or after the Agreement Date, which relates to the business, products, price lists, developments, trade secrets, know-how, personnel, suppliers and customers of a Party and its Affiliates (whether or not designated as Confidential Information by the disclosing Party), and all information designated as confidential or which ought reasonably to be considered confidential;
Customer means the Party described as such in the PO, or an Affiliate;
Customer Group means Customer’s parent company and its Affiliates;
Customer Group Policies means any policies of Customer Group in connection with its business that it may notify to Supplier;
Defect means any defective design, materials, workmanship, merchantable quality, unfitness for intended purpose in any Deliverable, or any Deliverable which does not conform or comply with the Specifications or otherwise to the requirements of this Agreement;
Defect Liability Period means the period specified as such in the PO, or, where it does not state a period, a period of one year from acceptance of the relevant Deliverable;
Delay Damages means the liquidated damages specified in the PO, payable by Supplier to Customer in the event of delayed delivery or performance of Deliverables;
Deliverables means the Goods or Services (or both), including documentation specified in the PO;
Delivery Date means the date specified for delivery or performance of the Deliverables (or both) in the PO, or as otherwise communicated by Customer;
Force Majeure Event means any event or occurrence which prevents a Party from performing any or all of its obligations under this Agreement for more than 30 days and which is unforeseeable and beyond the reasonable control of the Party so prevented or affected and may include acts of God, governmental act, war, fire, flood, explosion or civil commotion;
Good Industry Practice means the practices, methods and procedures and that degree of skill, diligence, prudence, foresight and judgement which would be expected to be observed by a highly skilled and experienced supplier of international repute engaged in the same or similar activities under the same or similar circumstances;
Goods means the goods described in the PO;
IPR means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trade marks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights and any other intellectual property or proprietary rights (whether registered or unregistered and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of these items, rights in the nature of those items in any country or jurisdiction, any rights in the nature of unfair competition rights and rights to sue for passing off;
PO means the attached purchase order requesting the supply of Deliverables;
Services means the services to be provided and/or performed by Supplier as set out in the PO;
Site means any site where the Deliverables (or any part of them) are to be performed or delivered under or in connection with this Agreement as communicated by Customer;
Special Terms and Conditions means the special terms and conditions as stipulated in a PO which may vary these terms and conditions;
Specifications means the specification, description, function or any other requirements in the PO and attached documents (including drawings or descriptions) and Supplier's product documentation;
Standard Terms & Conditions means these standard terms and conditions in this physical document which are to be used in connection with the PO; and
Supplier means the Party described as such in the PO which is to provide the Deliverables pursuant to this Agreement.
2. INTERPRETATION PROVISIONS
- 2.1 In this Agreement, the following rules of interpretation shall apply:
- 2.1.1 any reference to a Party shall be construed to include its successors and permitted assigns or transferees;
- 2.1.2 the words including and include shall be construed without limitation;
- 2.1.3 a reference to writing or written includes fax and email; and
- 2.1.4 Clause, Schedule, paragraph, index and other headings are for convenience only and shall not affect the construction or interpretation of this Agreement.
- 2.2 If there is an inconsistency between the PO and these Standard Terms & Conditions, then the order of precedence shall be: (a) the Special Terms and Conditions; (b) the PO; and then (c) these Standard Terms & Conditions.
3. PURCHASE ORDER AND DELIVERABLES
- 3.1 The PO sets out the Deliverables and Supplier shall ensure that the Deliverables comply with the Specifications, are free from Defect and are otherwise supplied and delivered in accordance with this Agreement.
- 3.2 Supplier shall perform its obligations under this Agreement in accordance with Applicable Law, Good Industry Practice and in a manner that complies with and does not place Customer in breach of Customer Group Policies or Applicable Law.
4. DELIVERY, INSPECTION, REJECTION
- 4.1 The Deliverables shall be supplied or performed so as to meet the Delivery Dates and deliver them to the designated Site according to the INCOTERM stated in the PO and as otherwise in accordance with this Agreement. Unless otherwise provided time shall be of the essence.
- 4.2 All work required to be carried out at a Site by Supplier shall be carried out during Customer’s normal business hours at the relevant Site or at such other times as Customer may require.
- 4.3 Customer shall be entitled to reject any Deliverables (or any part of them) that are not delivered in accordance with this Agreement. Where Customer rejects Deliverables under Clause 4.3 then Supplier shall, at its own cost and expense, promptly do all things as are necessary to re-supply the Deliverables.
5. DELAY DAMAGES
Supplier shall pay Customer the Delay Damages where the Deliverables have not been delivered or performed as required under this Agreement. Delay Damages are the Parties’ genuine pre-estimate of loss that will be suffered by Customer for delayed delivery or performance of the Deliverables.
All Deliverables must pass Customer’s acceptance tests. Customer may reject any Deliverable which does not pass Customer’s acceptance tests, either on delivery or for a latent Defect emerging after a reasonable period of use.
7. SUPPLIER PERSONNEL AND SITE ACCESS RIGHTS
- 7.1 Supplier shall ensure that its personnel engaged to supply or provide any part of the Deliverables:
- 7.1.1 are suitably skilled, qualified and experienced to work in accordance with Good Industry Practice; and
- 7.1.2 do not interfere with Supplier’s property, personnel (or that of any other third party) or business operations at any Site.
- 7.2 Supplier enters a Site at its own risk and shall ensure that its personnel are aware that their entry to a Site is at their own risk.
8. DEFECT LIABIILTY PERIOD
- 8.1 Supplier warrants that each Deliverable shall be free from any Defect during the Defect Liability Period. The Defect Liability Period begins on the date that the Deliverable has been accepted by Customer or the date of replacement under Clause 8.2.
- 8.2 Supplier shall promptly, and at its sole cost and expense, repair, replace or refund (at Customer’s discretion) any Deliverable subject to a Defect during the Defect Liability Period. If Supplier fails to remedy the Defect, Customer may do so itself and can deduct any related cost from the Charges.
9. GENERAL WARRANTIES
- 9.1 Supplier warrants to Customer that:
- 9.1.1 this Agreement shall, as of the Agreement Date, constitute valid and binding obligations on Supplier;
- 9.1.2 the Deliverables shall be free from Defect, fit for the purpose for which they are intended and rendered by appropriately experienced, qualified and trained personnel with due skill care and diligence in accordance with Good Industry Practice;
- 9.1.3 it has good and marketable title to the Goods and Customer will receive such title free of any lien;
- 9.1.4 it shall obtain and pass on to Customer the benefit of any manufacturer warranties when so requested and not later than the date of acceptance for the relevant Deliverable;
- 9.1.5 it shall at all times comply with Applicable Law;
- 9.1.6 Customer’s receipt of any Deliverable pursuant to this Agreement shall not breach any third party IPR.
10. PAYMENT TERMS
- 10.1 Subject to Supplier’s performance of its obligations in accordance with this Agreement, Customer will pay Supplier the Charges in accordance with this Clause 10.
- 10.2 Supplier may invoice Customer in accordance with the payment schedule or if no schedule has been agreed in the PO then within 21 days of acceptance of the relevant Deliverables.
- 10.3 Supplier acknowledges and agrees as at the Agreement Date Customer shall only pay invoices that conform to the requirements that have been made known to it by Customer.
- 10.4 An invoice (if correct and approved) shall be payable by Customer within 30 days of receipt by electronic transfer to Supplier's bank account as notified to Customer. Each Party shall be responsible for paying its own bank charges.
- 10.5 Customer shall not be required to pay any disputed portion of an invoice until such dispute has been resolved and the Parties agree that the amount is valid and properly due to Supplier. Customer shall pay undisputed amounts in accordance with Clause 10.4.
- 10.6 Supplier shall not increase the Charges unless expressly agreed in writing by Customer.
- 10.7 Any monies owed by Supplier to Customer, including those owed pursuant to any indemnity given by Supplier under this Agreement shall be payable within  days of demand.
- 10.8 Supplier shall give all notices and pay all taxes (including withholding tax), duties and fees that it is required of it by Applicable Laws in relation to its provision of the Deliverables.
- 10.9 The Parties acknowledge and agree that the Charges shall be exclusive of VAT. Where VAT is required to be paid, the Party liable to pay VAT shall bear the cost of any VAT payments.
11. TITLE AND RISK
- 12.1 Supplier shall indemnify Customer (and its personnel and Affiliates) from and against all loss and damage of whatever nature arising from any one or more of the following:
- 12.1.1 any negligent act or omission or wilful misconduct by Supplier or its personnel in connection with this Agreement; or
- 12.1.2 any physical loss or damage caused by Supplier’s personnel at any Site; or
- 12.1.3 any claim brought by a third party for a breach (or alleged breach) or infringement of that third party’s IPR as a result of the use by Customer or its Affiliates of Deliverables or Supplier’s performance under or in connection with this Agreement.
- 12.2 Each indemnity in this Agreement is a continuing obligation separate and independent from Supplier’s other obligations and survives the expiry or termination of this Agreement.
- 13.1 Nothing in this Agreement shall exclude or limit either Party’s liability to the other in relation to:
- 13.1.1 death or personal injury caused by negligence or wilful or reckless misconduct of that Party; or
- 13.1.2 any fraud or fraudulent misrepresentation of that Party; or
- 13.1.3 any liability which cannot be lawfully excluded by that Party; or
- 13.1.4 in the case of Supplier, a breach of Clauses 7, 8, 9, 17, 18 and 19.2.
- 13.2 Supplier accepts liability for damage or loss to Customer’s physical property or equipment arising from the performance or non- performance of Supplier’s obligations under this Agreement. Any such loss shall be calculated on a replace as new basis.
- 13.3 Supplier accepts liability for any injury, loss or damage sustained by or caused by Supplier or its personnel in performing its obligations in this Agreement unless solely due to or caused by Customer’s negligent acts.
- 13.4 No Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising as a direct result of a Force Majeure Event.
- 14.1 Supplier shall at all times insure and keep itself insured with a reputable insurance provider against all insurable liabilities under or in connection with this Agreement in amounts customary with Good Industry Practice or as otherwise specified by Supplier.
- 14.2 Supplier shall provide Customer upon request proof of existence of the insurance contemplated above which shall include the insurance certificate and a receipt for the current year’s premium.
- 14.3 Any amounts in this Clause 14 are minimum amounts and shall not constitute a limitation of Supplier’s liability.
15. TERMINATION RIGHTS
- 15.1 Customer may terminate this Agreement at any time and without cause by issuing a termination notice to Supplier giving not less than 30 days’ notice of such termination.
- 15.2 Either Party may serve a termination notice to terminate this Agreement with immediate effect if the other Party:
- 15.2.1 commits one or more breaches of this Agreement that is not remedied within 30 days of notice to do so; or
- 15.2.2 commits a material breach of this Agreement; or
- 15.2.3 experiences, or is reasonably likely to experience, an insolvency event or similar event; or
- 15.2.4 ceases to trade or threatens to cease trading including making arrangements with its creditors; or
- 15.2.5 is prevented from performing its obligations as a result of a verified Force Majeure Event.
- 15.3 Upon receipt of a termination notice, the Parties shall immediately:
- 15.3.1 return all Confidential Information to the Party that disclosed such Confidential Information;
- 15.3.2 take all possible action to mitigate any liabilities which may arise as a result of such termination; and
- 15.3.3 cease performance of its obligation hereunder in accordance with, and to the extent specified in, the termination notice.
- 15.4 The termination or expiry of this Agreement shall be without prejudice to the rights and remedies of either Party which may have accrued under this Agreement or Applicable Law up to the date of termination or expiry thereof.
- 15.5 The provisions of Clauses 13, 14, 16, 17, 18 and 19 shall survive the termination or expiry of this Agreement.
- 16.1 The IPR owned by a Party before the Agreement Date and made available to the other Party under or in the connection with this Agreement shall remain the absolute property of the granting Party.
- 16.2 Each Party shall grant to the other Party a non-exclusive, royalty free licence to use its IPR in perpetuity to the extent required so that the Parties may supply or use the Deliverables.
17. CONFIDENTIALITY AND PUBLICITY
- 17.1 Supplier shall keep Customer’s Confidential Information confidential and shall not disclose it to any third party without Customer’s prior written consent. This obligation shall survive the expiry and/or termination of this Agreement. Each Party shall use Confidential Information solely in accordance with its performance of its obligations under this Agreement.
- 17.2 Supplier shall not use or refer to Customer's name, trade names or trademarks, including as a commercial reference, without Customer’s prior express written authorisation.
18. DATA PROTECTION
Supplier shall comply with all applicable data protection laws and regulations and any relevant Company Group Policies andit shall not, by any act or omission, put Customer in breach of any data protection laws.
19. GENERAL PROVISIONS
- 19.1 Supplier shall, at the request and cost of Customer, do or procure the doing of all such things as may be necessary, in Customer’s opinion, to give full effect to this Agreement.
- 19.2 Supplier shall comply, and cause any sub-contractors it may use to comply, with Customer’s Anti-Bribery and Corruption policy as set out in Schedule 1 and the Fundamental Purchasing Principles in Schedule 2.
- 19.3 This Agreement (and any document referred to in it) constitutes the entire agreement of the Parties relating to the supply and delivery of the Deliverables, to the exclusion of all other terms and conditions.
- 19.4 Supplier shall not be entitled to assign, novate or otherwise transfer all or any of its rights, benefits or obligations under this Agreement without the prior written consent of Customer.
- 19.5 Supplier shall not sub-contract any of its obligations set out under this Agreement without the prior written consent in writing of Customer, which shall not be unreasonably withheld, conditioned or delayed.
- 19.6 Any changes or additions to this Agreement must be made in writing and signed by the Authorised Representative of each Party.
- 19.7 A failure by a Party to exercise or enforce any of its right under this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar its exercise or enforcement. Any waiver by a Party of any right under this Agreement must be given in
- writing by each Party’s Authorised Representative.
- 19.8 If any provision of this Agreement is determined to be invalid, illegal or void by any court or administrative body of competent jurisdiction then the rest of this Agreement shall still remain in full force and effect.
- 19.9 Nothing in this Agreement shall be construed to make either Party an agent, employee, franchisee, joint venture or legal representative of the other Party.
- 19.10 Supplier is not being appointed as an exclusive supplier of any Deliverable or similar items that Customer may require.
- 19.11 This Agreement does not create any rights which are enforceable by any person who is not a Party to this Agreement.
- 19.12 Any notice or other communication given under or in connection with this Agreement must always be in writing.
- 19.13 This Agreement is drawn up in the English language and the English language version of this Agreement shall always prevail over any translation. This Agreement shall be construed, interpreted and administered in English.
- 19.14 Unless otherwise stated, the rights and remedies of a Party under this Agreement do not exclude any other right or remedy provided by Applicable Law.
- 19.15 This Agreement shall be governed by, and construed in accordance with the law of Singapore.
- 19.16 The Parties submit to the exclusive jurisdiction of the courts of Singapore in relation to any disputes.
Public Official means an elected or appointed official, employee or agent of any national, regional or local government or state; any department, agency or instrument of any such government or state; any enterprise in which such a government or state owns, directly or indirectly, a majority or controlling interest; an official of a political party; a candidate for public office; or any official, employee or agent of any public international organization.
Close Family Member of a Public Official means a spouse or partner, one of his or her children, siblings or parents; the spouse or partner of his/her children or siblings; or any household member.
PREVENTION OF CORRUPTION
In recognition of applicable international and regional conventions against corruption and to ensure compliance with anti-corruption laws applicable to the Agreement or to the Parties [If needed: Alternative for the Application Agreement: or the Participants – in cases a Buyer is acting as the Operator of an unincorporated joint venture] or their ultimate parent company generally,
- In respect of the Agreement and its subject matter, Supplier warrants that neither it nor (to its knowledge) anyone on its behalf, has made or offered, or will make or offer, any payment, gift, promise or advantage (directly or through an intermediary) (Inducement) to or for the use of any Public Official for purposes of:
(a) influencing any act or decision of the Public Official;
(b) inducing the Public Official to do or omit to do any act in violation of his or her lawful duties;
(c) securing any improper advantage; or
(d) inducing the Public Official to use his or her influence to affect any act or decision of any department, agency or instrumentality of any government or public enterprise.
- The Supplier, in respect of the Agreement and its subject matter, warrants that it has not made or offered, and will not make or offer, any Inducement to or for the use of any person (other than a Public Official) for purposes of inducing that person to do or omit to do any act in violation of his or her lawful duty or to secure any improper advantage, or otherwise to do or refrain from doing something that would violate the laws applicable to the Agreement.
- Supplier shall cause its personnel and subcontractors to undertake the obligations in this Attachment and to warrant them under the terms of its agreements with any subcontractors. In particular, Supplier shall perform compliance due diligence on all major subcontractors to ensure that they act in strict compliance with applicable anti-corruption laws. Customer reserves the right to request proof of that due diligence.
- All financial settlements, billings and reports sent to Customer shall accurately and in reasonable detail reflect all activities and transactions undertaken in the performance of the Agreement. Supplier also shall maintain adequate internal controls to ensure that all payments made under the Agreement are authorized and comply with the Agreement. Customer reserves the right to perform (itself or through a representative) audits at the Supplier’s premises of all payments made by or on behalf of Supplier for services performed under the Agreement. Supplier agrees to cooperate fully in any such audit, including by making the relevant books and records available to Customer or its representative and by answering any relevant questions relating to the Supplier’s performance under this Agreement.
- All payments by Customer to Supplier shall be made in accordance with the terms of payment specified in the Agreement. The payment indications notified in the Supplier’s invoices shall be deemed to constitute a warranty by Supplier that the bank account so notified is owned solely by Supplier and that no person other than Supplier has any ownership of or interest in it.
- Except for any ownership, interest or position that Supplier has disclosed to Customer in writing, Supplier warrants that no Public Official or Close Family Member of a Public Official owns (directly or indirectly) shares or any other beneficial interest in Supplier (other than through ownership of publicly traded securities that is not sufficient to constitute a controlling interest), or is a director, officer or agent of the Supplier. Supplier agrees to notify Customer promptly and in writing of any developments that would or might affect the accuracy of this warranty. In any case, if a Public Official or Close Family Member of a Public Official owns or acquires (directly or indirectly) shares or any other beneficial interest in the Supplier, or is or becomes a director, officer or agent of Supplier, Supplier shall take appropriate steps to ensure that the Public Official or Close Family Member of a Public Official avoids any conflict of interest, complies with the legislation applicable in accordance with the place of performance of the Agreement prohibiting conflicts of interest on the part of Public Officials and complies with the provisions of this Attachment.
- Without prejudice to any other rights or remedies Customer otherwise may have, including (but not limited to) damages for breach of the Agreement, if Supplier does not comply with any of its obligations in this Attachment, Customer shall have the right to suspend payment and require reimbursement of any advance payment made under the Agreement, and/or suspend or terminate the Agreement for default with immediate effect.
Fundamental Principles of Purchasing
- In accordance with the fundamental principles set out in particular in the United Nations Universal Declaration of Human Rights, the Conventions of the International Labour Organization, the United Nations Global Compact, and the OECD Guidelines for Multinational companies, suppliers are required to comply with - and to make sure that their own suppliers and subcontractors comply with – current laws, as well as principles equivalent to those defined below.
Respecting human rights at work
- Ensure that working conditions and remuneration of workers preserve human dignity and are consistent with fundamental principles defined and protected by the Universal Declaration of Human Rights, by the fundamental principles of the International Labour Organization, and in particular with rules relating to the prohibition of forced labour and child labour, workplace safety, the establishment of an employment contract, working time, rest and parental leave, treatment of discrimination and harassment at the workplace, freedom of speech, association and collective bargaining, freedom of thought, conscience and religion;
- Improve their standards and procedures concerning human rights at work.
Protecting health, safety, and security
- Perform risk analysis and assessments in these areas and implement appropriate means to prevent those risks;
- Establish a system for monitoring events that occurred in these areas.
Preserving the environment
- Implement an appropriate environment risk management system, in order to identify and control the environmental impact of activities, products or services, to continuously improve environmental performance, and to implement a systematic approach to define environmental objectives, achieve them and demonstrate that they have been achieved;
- Undertake the improvements needed for protecting the environment;
- Limit the impact of industrial activities on the environment.
Preventing corruption, conflict of interests, and fighting against fraud
- Fight against fraud;
- Prevent and ban any form of corruption: active or passive, private or public, direct or indirect;
- Avoid conflicts of interest, in particular when personal interests may influence professional interests.
Respecting the competition law
- Comply with the applicable competition law.
Promoting economic and social development
- Create a climate of trust with stakeholders, engaging in a dialogue with local communities, promoting local sustainable development initiatives, and giving local companies the opportunity to develop their business.
- Compliance with these laws and principles may be audited