CPES GTC / WASP CPS GENERAL TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms have the following meanings:
Affiliate: any entity which directly or indirectly controls, is controlled by, or is under common control with a Party;
Contract: a written agreement and/or the Order for the purchase of Goods and/or Services by Customer from Supplier which shall incorporate by reference these GTC, and any other documents submitted by Customer to form part thereof, such as but without limitation to any specifications (which shall include any Supplier specifications where Customer agrees to use, or places an Order relying on, such specifications);
Customer: the party ordering Goods and/or Services from Supplier;
Customer Data: any data or information, including Personal Data, acquired by Supplier in preparation of or during the fulfilment of the Contract, irrespective of whether such data or information relates to Customer, its Affiliates or their respective customers or suppliers;
Delivery Location: Customer’s nominated warehouse, factory or other premises for physical delivery of Goods and/or Services, which may be the premises of one of Customer’s Affiliates (including such location as may be listed in any relevant price list) or third party freight or logistics providers, or if no location is nominated, Customer’s place of business;
Embedded Software: software necessary for operation of Goods, and embedded in and delivered as integral part of Goods;
Goods: the items to be delivered by Supplier in accordance with the Contract and/or all materials, documents, or other deliverables which are the result of Services provided by Supplier under the Contract in any form or media, including but without limitation to data, diagrams, drawings, reports and specifications; GTC: these CPES/WASP CPS General Terms and Conditions for Purchase of Goods and/or Services;
Intellectual Property Rights: (a) patents, utility models, copyrights, database rights and rights in trademarks, trade names, designs, knowhow, and invention disclosures (whether registered or unregistered); (b) applications, reissues, confirmations, renewals, extensions, divisions or continuations for any of these rights; and (c) all other intellectual property rights and similar forms of worldwide protection;
Order: Customer’s order issued to Supplier for the purchase of Goods and/or Services, including any purchase order issued electronically;
Party: Customer or Supplier, collectively the Parties;
Personal Data: any data or information of an identified or identifiable natural person;
Services: the services to be provided by Supplier in accordance with the Contract;
Supplier: the party providing the Goods and/or Services to Customer
(or any Customer Affiliate at a relevant Delivery Location);
Variation Order: a change to the Order such as to alter, to amend, to omit, to add to, or otherwise to change the Order or any parts thereof.
1.2 References to clauses are references to clauses of the GTC.
2.1 The GTC govern the Contract, and no terms or conditions delivered with or contained in Supplier’s quotations, acknowledgements, acceptances, specifications or similar documents will form part of the Contract, and Supplier waives any right which it might have to rely on such terms or conditions. Supplier shall accept the Contract either expressly by written statement or impliedly by fulfilling the Contract in whole or in part.
2.2 Any amendments to the Contract must be agreed in writing.
3. SUPPLIER’S RESPONSIBILITIES
3.1 Supplier shall deliver the Goods and provide the Services in in accordance with the applicable laws and regulations, in accordance with the Contract (including by providing any necessary documentation) and all Customer instructions, free from defects and from any rights of third parties, fit for any particular purpose specified in the Contract or, in absence thereof, and fit for the purposes for which such Goods and/or Services would ordinarily be used.
3.2 Supplier shall ensure that the Goods are packed according to industry standards and any applicable laws and regulations, in a manner adequate to preserve and protect the Goods, and sufficient to enable safe unloading and inspection at the relevant Delivery Location.
3.3 When Customer (or a Customer Affiliate at a relevant Delivery Location) identifies quality related issues on the part of Supplier, Customer (or Customer Affiliate) will notify Supplier thereof. Notwithstanding other remedies available to Customer under the Contract, Customer may instruct Supplier to undertake at Supplier’s risk and expense an analysis into the root cause(s) of the quality related issues; such analysis being undertaken and reported to Customer within ten (10) calendar days of the notification of the quality related issue(s). Customer reserves the right to undertake an audit (carried out by Customer’s nominated personnel, which may include third party experts or Customer Affiliate staff) of Supplier based on the results of the root cause analysis or where Supplier fails to comply with this Clause. Supplier shall also pro- actively advise Customer if it becomes aware of any quality related issues that may affect the Goods and/or Services, and the provisions of this Clause 3.3 shall otherwise apply as if the issue had been notified by Customer.
3.4 Customer may issue Variation Orders to Supplier, and Supplier shall carry out such Variation Orders. If any Variation Order causes an increase or decrease in the cost of, or the time required for the performance of, any Services or Goods, an equitable adjustment shall be made in the purchase price and/or Delivery schedule in writing. Any Supplier claim for adjustment under this Clause will be deemed waived unless asserted within thirty (30) calendar days from Supplier’s receipt of the Variation Order. Variation Orders requested by Supplier only become effective after written confirmation by Customer.
3.5 Supplier must not suspend the Delivery of any Goods or the provision of any Services.
3.6 Supplier assumes full and exclusive responsibility for any occupational accident that occurs, or disease that affects, its employees and its subcontractors in relation to the provision of the Goods and/or Services.
4. PRICING, PAYMENT, INVOICING
4.1 In consideration of the Goods delivered and/or the Services provided by Supplier in accordance with the Contract, all prices are firm and shall not be subject to change. Supplier’s price includes all taxes, fees and/or duties (including tariffs) applicable to the Goods and/or Services purchased under this Order; provided, however, that any value added tax that is recoverable by Customer, state and local sales, use, excise and/or privilege taxes, if applicable, shall not be included in Supplier’s price but shall be separately identified on Supplier’s invoice. If Supplier is legally obligated to pay value added and/or similar tax, Supplier shall invoice Customer in accordance with applicable rules to enable Customer to reclaim such tax.
4.2 Supplier shall submit invoices in an auditable form, complying with applicable laws, generally accepted accounting principles containing the following minimum information: Supplier name, address and reference person including contact details; invoice date; invoice number; Order number and Supplier number; address of Customer; quantity; specification of Goods and/or Services; price (total amount invoiced); currency; tax or sales tax amount; tax or sales tax number. Supplier shall state the Order number on all invoices (in particular, but not limited to commercial, pro forma or customs invoices).
4.3 Invoices must be sent to the billing address specified in the Contract (or as otherwise agreed with Customer).
4.4 Customer shall pay the invoice in accordance with the payment terms agreed in the Contract.
4.5 Customer will reimburse expenses only at cost and to the extent agreed in writing.
4.6 Services charged on the basis of hourly rates require written confirmation of Supplier’s time sheets by Customer. Supplier shall submit such time sheets to Customer for confirmation as may be instructed by Customer but latest together with any related invoice. Confirmation of time sheets cannot be construed as acknowledgement of any claims. Customer is not obliged to pay invoices based on time sheets which are not confirmed by Customer in writing.
4.7 Customer reserves the right to set off or withhold payment for Goods and/or Services not provided in accordance with the Contract.
4.8 Customer may withhold payment pending receipt of evidence from Supplier, as reasonably required by Customer, to establish the absence of liens, encumbrances and claims against any property of Customer related to the Goods and/or Services that are the subject of the Contract.
5. DELIVERY, PERFORMANCE OF SERVICES
5.1 Unless agreed otherwise in the Contract, the Goods shall be delivered in accordance with INCOTERMS 2020 FCA, to the Delivery Location.
5.2 The Services shall be provided at the Delivery Location.
5.3 Supplier shall provide, no later than at the time of acceptance of the Contract, the following minimum information: number of packages and contents, Harmonized Tariff Schedule (HTS) codes for the country of consignment (or other tariff classification codes, as specified in the Purchase Order), and the countries of origin for all Goods.
5.4 The Goods shall be delivered, and Services shall be provided, during Customer’s business hours (or those of the requested Delivery Location) unless otherwise requested by Customer.
5.5 Upon Delivery, Supplier (or its appointed carrier) shall provide Customer (or, if requested, any nominated Customer Affiliate at the Delivery Location) a delivery note and any other required export and import documents not mentioned in Clause 5.3. If Customer has approved partial delivery, such delivery note shall also include the outstanding balance.
5.6 Ownership of the Goods passes to Customer at Delivery. For the avoidance of doubt, Supplier shall have no rights of retention of title, and Supplier will convey good title to the Goods, free of any liens or encumbrances (but transfer of title and ownership in the Goods to Customer shall not release Customer from its obligation to pay for those Goods, in accordance with the terms of the Contract).
6.1 Delivery of Goods or provision of Services shall not be deemed to be acceptance of such Goods or Services by Customer. Customer (or its nominated Customer Affiliate at the Delivery Location) shall have reasonable time to inspect or test the Goods and/or Services and to report any defects to Supplier. If a defect in the Goods and/or Services was not reasonably detectable during the inspection, Customer (or its nominated Customer Affiliate at the Delivery Location) shall have reasonable time to provide notice of such defect after it has become apparent and/or to reject the Goods and/or Services.
6.2 The Parties may agree on a certain acceptance procedure, in which case acceptance will be subject to Customer’s written acceptance statement (or that of Customer’s nominated Affiliate). Supplier shall inform Customer (and any relevant Customer Affiliate) in writing within a reasonable time period in advance when the Goods and/or Services are ready for acceptance.
6.3 Customer may enforce any remedy defined in the Contract for any rejected Goods or Services.
Supplier will deliver Goods in accordance with any date or time, and at least in accordance with any lead times, specified in the Contract. If the Delivery of Goods or the provision of Services does not comply with the agreed date(s), Customer may:
7.1 terminate the Contract in whole or in part;
7.2 refuse any subsequent delivery of the Goods or provision of the Services;
7.3 recover from Supplier any expenses reasonably incurred by Customer (or any affected Customer Affiliate) in obtaining the Goods and/or Services in substitution from another supplier;
7.4 claim damages for any cost, loss, expenses and liquidated damages incurred by Customer (or by any affected Customer Affiliate) which are attributable to Supplier’s delay;
7.5 claim liquidated damages as agreed in the Contract; and
7.6 it is agreed that Customer may select one or more such remedies and recovering costs or damages under any of Clauses 7.3 to 7.5 shall not exclude Customer from recovering other costs or damages under the other parts of this Clause 7.
8. WARRANTY AND REMEDIES
8.1 Supplier warrants that the Goods and/or Services comply with the Contract, including but without limitation to Supplier’s responsibilities as defined in Clause 3.1.
8.2 Supplier warrants that the Goods are new and unused at the date of Delivery and remain free from defects during the warranty period.
8.3 The warranty period is twenty-four (24) months from Delivery, or as otherwise set out in the Contract.
8.4 In case of breach of any warranty which is not remedied within forty-eight (48) hours from Customer’s notification, or in case of any other breach of the Contract, Customer is entitled to enforce any or all of the following remedies at its discretion and at Supplier’s expense:
8.4.1 to give Supplier an opportunity to carry out any additional work necessary to ensure that the Contract is fulfilled;
8.4.2 to require Supplier promptly to repair or replace the defective Goods and/or Services; as may have been sustained by Customer (or any Customer Affiliate) as a result of Supplier’s breach of the Contract;
8.4.3 to carry out (or to instruct a third party to carry out) any additional work necessary to make the Goods and/or Services comply with the Contract;
8.4.4 to refuse any further Goods and/or Services;
8.4.5 to require Supplier to indemnify and hold harmless Customer (and any relevant Customer Affiliate) for such damages as may have been sustained by Customer (or any Customer Affiliate) as a result of Supplier’s breach of the Contract
8.4.6 to terminate the Contract, and in such event:
184.108.40.206 Customer has no obligation to compensate Supplier (including paying for the Goods and/or Services which have been rejected); and
220.127.116.11 at Customer’s option, Supplier shall pay back to Customer any remuneration received from Customer for the Goods and/or Services and take back the Goods at Supplier’s own cost and risk; and
18.104.22.168 Customer may source equivalent replacement goods and/or services from an alternative supplier (with any incremental costs incurred in doing so being for Supplier’s account).
8.5 In case of a breach of any warranty, the entire warranty period shall be restarted for the defective Goods/Services from the date the remediation is completed to Customer’s satisfaction.
8.6 The rights and remedies available to Customer under the Contract are cumulative and are not exclusive of any rights or remedies available at law or in equity.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Subject to Clause 9.2, Supplier hereby grants Customer and its Affiliates, or undertakes to procure that Customer and its Affiliates are granted, a worldwide, irrevocable, transferable, sub- licensable, non-exclusive, royalty-free license to use the Intellectual Property Rights in the Goods, including Embedded Software, if any.
9.2 Supplier herewith assigns to Customer (or will assign to Customer’s nominated Affiliate) full ownership rights in any Intellectual Property Rights in Goods resulting from the Services. Supplier further agrees, upon Customer’s request and at its cost, to take all further steps necessary to perfect Customer’s ownership (or that of its nominated Affiliate) to the Intellectual Property Rights.
9.3. If any claim is made against Customer (or any Customer Affiliate) that the Goods and/or Services infringe a third party’s Intellectual Property Rights, Supplier shall, at its cost, but at Customer’s discretion: (i) procure for Customer, Customer’s Affiliates and Customer’s clients, as the case may be, the right to continue using the Goods and/or Services; (ii) modify the Goods and/or Services so they cease to be infringing; or (iii) replace the Goods and/or Services with non-infringing equivalents. Otherwise, Customer is entitled to terminate the Contract and to reclaim all sums which it, or any Customer Affiliate, has paid to Supplier thereunder.
10.1 Supplier shall provide the Goods and/or Services in compliance with all relevant laws, regulations, and codes of practice.
11. CONFIDENTIALITY, DATA SECURITY, DATA PROTECTION
11.1 Supplier shall keep in strict confidence all Customer Data and any other information concerning Customer’s or its Affiliates’ business, their products and/or their technologies which Supplier obtains in connection with the Goods and/or Services to be provided (whether before or after acceptance of the Contract). Supplier shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors or other third parties as need to know the same for the purpose of the provision of the Goods and/or Services to Customer. Supplier shall ensure that such employees, agents, subcontractors or other third parties are subject to and comply with the same obligations of confidentiality as applicable to Supplier and will be liable for any unauthorized disclosures.
12. LIABILITY AND INDEMNITY
12.1 Without prejudice to applicable law, Supplier shall indemnify and hold harmless Customer, and any affected Customer Affiliate, for all liabilities, damages, cost, losses or expenses incurred by Customer (or such Customer Affiliate) as a result of Supplier’s breach of the Contract. Supplier shall indemnify and hold harmless Customer and each relevant Customer Affiliate for any claim made by a third party against Customer (or such Customer Affiliate) in connection with the Goods and/or Services, including, but not limited to, claims that such Goods and/or Services infringe a third party’s Intellectual Property Rights. Upon Customer’s request Supplier shall defend Customer (or any relevant Customer Affiliate) against any such third-party claims.
12.2 Supplier is responsible for the control and management of all of its employees, suppliers and/or subcontractors, and it is responsible for their acts or omissions as if they were the acts or omissions of Supplier.
12.3 Customer reserves the right to set off any claims under a Contract against any amounts owed to Supplier.
13.1 Customer may terminate the Contract for convenience in whole or in part by giving Supplier thirty (30) calendar days written notice. In such event Customer shall pay to Supplier the value of the delivered but unpaid Goods and/or Services (provided that such Goods and/or Services otherwise comply with the Contract) and proven direct costs reasonably incurred by Supplier for undelivered Goods and/or Services, however in no event more than the price for the Goods and/or Services agreed under the Contract. No further compensation will be due to Supplier.
13.2 In the event of Supplier’s breach of the Contract, Customer is entitled to terminate the Contract in accordance with Clause 8.4.
13.3 Customer may terminate the Contract with immediate effect by notice in writing in the event that: (i) an interim order is applied for or made, or a voluntary arrangement approved, or a petition for a bankruptcy order is presented or a bankruptcy order is made against Supplier; or (ii) any circumstances arise which entitle the court or a creditor to appoint a receiver or administrator or to make a winding-up order; or (iii) other similar action is taken against or by Supplier by reason of its insolvency or in consequence of debt; or (iv) there is a change of control of Supplier.
14. FORCE MAJEURE
14.1 Neither Party (nor any Customer Affiliate receiving the Goods and/or Services) will be liable for any delay or failure to perform its obligations under a Contract if the delay or failure results from an event of Force Majeure. Force Majeure means an event that was not foreseeable by the affected Party (or Customer Affiliate) at the time of execution of the Contract, is unavoidable and outside the reasonable control of the affected Party (or Customer Affiliate), provided that it cannot overcome such event despite all reasonable efforts, and that it provides notice to the other Party (and, in the case of Supplier being affected, to any relevant Customer Affiliate) within five (5) calendar days from occurrence of the Force Majeure event.
14.2 If a Force Majeure event exceeds thirty (30) calendar days, either Party may terminate the Contract forthwith by written notice without liability. Each Party shall use reasonable efforts to minimize the effects of the Force Majeure event.
15. ASSIGNMENT AND SUBCONTRACTING
15.1 Supplier may neither assign, nor novate, transfer, encumber or subcontract the Contract, nor any parts thereof (including any monetary receivables from Customer) without prior written approval of Customer.
15.2 Customer may assign, novate, transfer, subcontract or deal in any other manner with the Contract, in whole or in part, at any time, and on more than one occasion thereof to its Affiliates, or to any successor-in-interest or title which acquires that part of Customer’s group of companies’ business to which the relevant Contract relates (and such transferee may do the same).
Any notice must be given duly signed by registered mail, courier, fax or by e-mail to the address of the relevant Party as stated in the Contract and/or to such other address as such Party may have notified in writing (including Customer Affiliates operating at relevant Delivery Locations). E-mail and fax require written confirmation of the receiving Party. Supplier’s reply, correspondence, information or documentation related to the Contract must be provided in the language used in the Contract.
Failure to enforce or exercise any term of the Contract does not constitute a waiver of such term and does not affect the right later to enforce such or any other term therein contained.
18. GOVERNING LAW AND DISPUTE SETTLEMENT
18.1 The Contract is governed by the laws of or State of New York, including the Uniform Commercial Code adopted therein, but excluding the provisions of the United Nations Convention on International Sale of Goods and excluding New York law with respect to conflicts.
18.2 If Customer and Supplier are registered in the same country, any dispute arising in connection with the Contract which cannot be settled amicably shall be submitted for resolution to the jurisdiction of the State Courts of New York or the U. S. District Court for the Southern District of New York.
18.3 If Customer and Supplier are registered in different countries, any dispute arising in connection with the Contract which cannot be settled amicably shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance therewith. Place of arbitration shall be Customer’s place of registration. The language of the proceedings and of the award shall be English.
The invalidity or unenforceability of any term of the Contract will not adversely affect the validity or enforceability of the remaining terms. The Contract will be given effect as if the invalid or unenforceable term had been replaced by a term with a similar economic effect.
20.1 Provisions of the Contract which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination will remain in full force and effect notwithstanding such termination.
20.2 The obligations set forth in Clauses 8 (Warranty and Remedies), 9 (Intellectual Property Rights), 11 (Confidentiality, Data Security, Data Protection) and 12 (Liability and Indemnity) exist for an indefinite period of time and survive expiration or termination of the Contract for any reason.
21.1 The Contract (incorporating these GTC), and any documents incorporated into an Order or other agreement (including by reference) constitute the entire agreement between the Parties and replaces any prior agreement between them with regard to its subject.
21.2 In the event of any inconsistency between documents comprising the Contract, the following order of precedence shall apply:
21.2.1 any Contract established by the Customer (to the extent that specific deviations from the GTC, are explicitly identified in that Contract); then
21.1.2 these GTC; and, for the avoidance of doubt, any terms and conditions set out, or referenced, in any other document shall not apply, nor form part of any Contract.[END]