- GENERAL: Only written orders or variations thereto made on Buyer’s official printed order forms and these General Conditions of Purchase are binding on Buyer. In the event of a conflict between the General Conditions of Purchase and the order form, the latter shall prevail. Buyer will not be bound by Supplier’s terms and conditions, unless Buyer expressly agrees to such terms and conditions in writing. “Contract” means the written agreement (including these Terms and Conditions and the order form) made between Buyer and Supplier for the Supply of Goods and/or the provision of Services. “Contract Price” means the price payable by the Buyer to the Supplier for the Goods and/or Services. “Buyer” means the company names at the head of this page; “Supplier” means the person, firm, company or corporation to whom the order is given. “Services” means the services described in Buyer’s order form. “Goods” means all materials, items, sub-assemblies, equipment, software, systems and documentation to which the order relates. “Emerson” means any of Buyer’s affiliates for whose benefit the Goods and/or work are being purchased. Buyer purchases the Goods on behalf of Emerson.
- VARIATION: Buyer reserves the right at any time to vary the order form and if any such variations cause a change to Supplier’s costs, an equitable variation shall be made to the price payable to Supplier and shall be agreed by Buyer in writing; any financial claim or request for a change to the due date for delivery/completion must be made in writing within 5 days from the date the variation was advised and in default shall be inadmissible.
- QUALITY AND WARRANTIES: Supplier warrants (i) that the Goods will be new, unused, of merchantable and satisfactory quality, fit for any purpose made known to Supplier whether expressly or by implication, and free from all defects whether in design, material or workmanship, (ii) that the Goods and Services will conform with the specifications, drawings, samples or other descriptions contained or referred to in this order and with all applicable standards, codes, laws and regulations, (iii) that Supplier will exercise all reasonable skill, care and due diligence and shall carry out the Services in accordance with good engineering and professional practice, (iv) that Supplier has in place and complies with a documented quality management system, (v) that the Goods and the product of the Services (if any) shall be supplied with such documentation as is suitable and adequate for their use, installation, operation, handling, storage and maintenance, and (vi) that Supplier has suitable and sufficient premises, competent and qualified staff and tools and equipment required to perform its obligations under the Contract. Without prejudice to Buyer’s other rights and remedies, including but not limited to the warranty for hidden defects and for lack of security, Supplier shall at its own cost make good all defects appearing in the Goods and/or work within 24 months from first use or such other period as may be stipulated in the order.
- PRICE: The prices stated in this order are fixed, firm and not subject to variation for any reason save as set out in Clause 2; the prices exclude Value Added Tax or any withholding tax, whether in force at the date of the order or in the future.
- INSPECTION AND EXPEDITING: Buyer, Buyer ’s customer and/or, if different, the end-user (“Buyer Group”), and/or any official body concerned shall be entitled to inspect or test the Goods or work and to expedite progress of this order at any reasonable time at Supplier’s works or at the works of any of Supplier’s sub-contractors or assignees. Supplier will give Buyer adequate notice of Supplier’s and its subcontractors’ works tests which Buyer Group shall be entitled to attend. Supplier will provide Buyer with such test certificates as Buyer may require. Such inspection, testing and / or attendance by Buyer does not relieve Supplier of any liability nor does it imply acceptance of the Goods or work. Supplier shall promptly inform Buyer of any contact with any customers of Emerson, the end-user (if different) and/or any official body in connection with this order and shall not act upon any instruction from any of them unless confirmed in writing by Buyer. Supplier shall supply schedules and progress reports for Buyer Group’s use in expediting as required by the Buyer Group, and shall render all other assistance deemed reasonably necessary by Buyer Group. Any additional expediting costs incurred by Buyer Group due to a failure/rectification or delay of Supplier shall be borne by Supplier.
- RISK: Risk in the Goods will remain with Supplier until they are delivered in accordance with the delivery terms as stipulated on the order. Supplier: (i) warrants the full, complete and unrestricted title to Buyer of all Goods furnished by Supplier under the Contract, whether upon delivery or by way of progress payments (in which case this warranty covers the portion of the Goods over which progress payments have been made), free and clear of and not subject to any sub-contractor or third party lien, restriction, reservation, security interest, encumbrance, retention of title arrangement or any other like interest; (ii) shall not claim any liens, attachments or other similar claims in connection with the Goods; (ii i) shall ensure that Goods supplied under the Contract shall at all times be free from any lien, charge, or encumbrance in favour of any third party; (iv) shall at any time at Buyer’s request provide evidence that the Goods or any part thereof are free and clear of any liens, charges or encumbrances, including, without limitation, any title retention arrangement, enforceable by or on behalf of Supplier and/or any of its sub-contractors and/or suppliers; and (v) shall defend and indemnify Buyer Group against any and all liens, attachments or other similar claims resulting from failure to fulfill its contractual obligations to any sub-contractor or Supplier’s suppliers, employees, servants or agents.
- TIME: The time stipulated for delivery of the Goods and/or performance of the Services shall be of the essence. Supplier shall immediately notify Buyer of any likely delay in delivery or completion.
- REJECTION: If the Goods and/or Services do not comply with the Contract, Buyer shall be entitled to reject the Goods and/or Services or any part of them at any time up to 6 months after delivery, irrespective of whether Buyer is deemed to have accepted them. Without prejudice to any other right or remedy available to Buyer, Buyer shall be entitled to return any rejected Goods to Supplier at Supplier’s risk and expense. The Supplier shall have spare parts available at any time. He shall place the spare parts at the Buyer's disposal or deliver them to the Buyer immediately upon Buyer's request.
- TERMINATION AND SUSPENSION: If Supplier is in default of any provision of the Contract (or if, in Buyer’s sole discretion, it appears that Supplier will be unable to comply with any such provisions), or if Supplier becomes bankrupt or insolvent, or is made the subject of an administration order, or commences a winding-up by reason of insolvency, then without prejudice to any other remedy available to Buyer, to the extent permissible under the applicable regulation, Buyer shall be entitled to terminate the Contract immediately by notice in writing, purchase equivalent or similar products and/or work from others and recover the additional cost of so doing from Supplier, and/or enter without prior notice any premises where Goods may be, take possession of them and remove them from such premises, whereby the Supplier accepts that the Buyer enters any of its premises and takes possession of the Goods and shall use its best endeavors to permit Buyer take such actions. In addition to the foregoing, Buyer shall be entitled, without cause and at any time, to (i) suspend delivery of the Goods and/or performance of the Services without liability or (ii) cancel the order in whole or in part by notifying Supplier in writing in which event Supplier shall cease performance and Buyer shall pay Supplier its fully documented and properly supported out-of-pocket expenses arising directly from the cancellation. Buyer shall not be liable for damages or claims (including but not limited to claims for lost profits) except as expressly set out in this clause.
- INDEMNITY: Supplier shall indemnify and hold Buyer and its affiliates fully harmless against all claims, costs, expenses, loss and damage which Buyer and/or its affiliates may suffer howsoever arising (i) from Supplier's breach of any of its obligations under this order; (ii) from the negligence of Supplier, its agents, assignees, employees, representatives or sub-contractors; (iii) from product liability claims arising in connection with the Goods at any time and notwithstanding any time limitations provided by applicable legislation; or (iv) in respect of any infringement of letters patents, registered design, design right, trade mark, copyright or other intellectual property right arising out of the sale or use of the Goods supplied or from the Services work under this Contract, provided always that Supplier shall not be required to indemnify Buyer to the extent that such infringement is caused by a specific design provided by Buyer.
- ASSIGNMENT AND SUBCONTRACTING: Supplier shall not assign, transfer or subcontract the whole or any part of the Contract without the prior written consent of Buyer. Buyer may assign or transfer the whole or any part of the Contract to Buyer’s customer or to any Buyer affiliate at any time without the prior consent of Supplier.
- INTELLECTUAL PROPERTY AND CONFIDENTIALITY: All dies, moulds, tools, jigs, patterns, materials, drawings, designs, specifications, software and other data provided by Buyer in connection with this order will remain at all times the property of Buyer and/or Emerson, (as applicable) are to be surrendered to Buyer on completion of the Contract and are to be used by Supplier solely for the purpose of the Contract. In addition any patents, copyrights, registered designs, design rights or other intellectual property rights arising from the execution of this Contract (i) in accordance with Buyer’s patterns, drawings, specifications, designs or other data, or (ii) at Buyer’s expense, shall become the property of Buyer and Supplier shall at Buyer’s request and expense execute any documents Buyer shall deem necessary to formally vest such intellectual property rights in Buyer. Supplier agrees not to supply products made with or based on Buyer’s or Emerson’s dies, tools, moulds, jigs or materials, patterns, specifications, designs, drawings or other data to any third party without Buyer’s prior consent in writing. This Contract, the subject matter thereof and all designs, drawings, specifications, software and other information whether of a technical or commercial nature shall be treated as confidential by Supplier and shall not, without Buyer’s prior consent in writing, be disclosed by Supplier to any third party or used by Supplier for advertisement, display or publication or for any purpose other than as necessary for the proper performance of its obligations under this Contract. When required by Buyer, Supplier shall enter into a separate written confidentiality/secrecy agreement.
- COMPLIANCE WITH LAWS, REGULATIONS ETC: 13.1 Supplier, its sub-contractors and assignees and their personnel shall at all times comply with all applicable laws, regulations, codes and standards including but not limited to all health, safety and environmental laws and regulations such as (i) applicable product safety legislation (e.g. EU machinery directive 89/392/EEC, electromagnetic compatibility directive 89/336/EEC, low voltage directive 73/23/EEC); (ii) regulations regarding the provision of information about substances hazardous to health and (iii) all regulations imposed by, and relating to work (including security requirements) at the premises of Emerson, its customer and end user (as applicable). 13.2 Supplier represents and warrants that at the date of formation of the Contract, all Goods are eligible for shipment to the destination, end use and end user as advised by Buyer in accordance with all applicable export control regulations including applicable U.S. regulations and orders, U.N. resolutions, regulations in force in Supplier’s country and/or the country from which the Goods will be exported. Supplier further agrees that: (i) The Export Compliance Declaration completed by Supplier before formation of the Contract forms part of the Contract; (ii) Supplier will advise Buyer as soon as possible if any of the Goods cease to be eligible for shipment to the above destination; (iii) In the event that further items are added to the Contract, Supplier will evaluate their eligibility for shipment and either provide a new Export Compliance Declaration form or advise Buyer that they are not eligible for shipment. 13.3 Supplier is and remains solely responsible for the full compliance of delivered Goods or parts of Goods with any applicable rules and regulations (“Legislations”) on restriction of hazardous substances (“RoHS” ) such as Directive 2002/95/EC as of 27 January 2003 (“EU RoHS”), the Administrative Measures on the Control of Pollution Caused by Electronic Information Goods as of 28 February 2006 (“China RoHS”), etc. and all further releases as well as all national or local regulations issued in execution of the aforesaid RoHS Legislations. Therefore all delivered Goods or parts of Goods must be suitable and fit for RoHS compliant production and sale. Supplier will complete and sign Buyer ’s standard Declaration of RoHS Compliance at the part number level, use appropriate systems and processes to ensure the accuracy of these determinations and maintain appropriate records to allow traceability of all products or parts of products. Insofar as products or parts of products are not supplied in accordance with the aforementioned requirements, Buyer reserves the right to cancel blanket or single orders at Supplier’s expense. Supplier undertakes to duly and immediately inform Buyer of any changes affecting RoHS Compliance. In case of proven violations of national or international RoHS Compliance regulations by the Supplier, Supplier undertakes to exempt and hold Buyer harmless from any claim, liability, loss, damage, judgment and external responsibility, irrespective their legal ground, and to bear any and all harm, loss or damage arising to Buyer’s disadvantage in the event of infringement. 13.4 To the extent required by applicable law, Supplier shall be responsible for the collection, treatment, recovery or disposal of (i) the Goods or any part thereof when they are deemed by law to be 'waste' and (ii) any items for which the Goods or any part thereof are replacements. If Supplier is required by applicable law, including waste electrical and electronic equipment legislation, European Directive 2002/96/EC (WEEE) and related legislation in EU Member States, to dispose of 'waste' Goods or any part thereof, Supplier shall dispose of such Goods entirely at its own cost (including all handling and transportation costs). 13.5 Supplier shall comply with all applicable anti-corruption, anti-money laundering and anti-terrorism laws, including but not limited to those of the United States, the Supplier’s country, the Buyer’s country and the country which is the end-destination of the Goods and/or in which work is to be performed by Supplier, and all intermediate countries (“Relevant Laws”) and represents and warrants that it has not and will not in any way breach(ed) any Relevant Laws whether in relation to this order or otherwise. Supplier’s acceptance of the order shall be deemed to be certification by Supplier of compliance with all Relevant Laws. 13.6 Supplier shall forthwith implement and maintain an effective program of compliance with Relevant Laws satisfactory to Buyer, that includes: (i) adoption of a code of conduct or “code of ethics” (“Supplier’s Code”); (ii) implementation of a system of internal accounting controls and a system designed to enable the making and keeping of accurate books, records and accounts that satisfy the requirements of the Supplier’s Code and Relevant Laws; (iii) establishment of procedures to ensure compliance with the Supplier’s Code and with Relevant Laws; (iv) implementation of a program of training and education concerning compliance with the Supplier’s Code and Relevant Laws; (v) implementation of a program of internal review and audit of compliance; (vi) implementation of a system for the reporting of violations of the Supplier’s Code and Relevant Laws; and (vii) implementation of a procedure for disciplining employees who violate the Supplier’s Code or Relevant Laws. Buyer shall be entitled either itself or by employing a third party, to audit such program of compliance during normal working hours, subject only to reasonable notice having been given and subject to the execution by Buyer or the third party of a suitable non-disclosure agreement. 13.7 Supplier's compliance with the requirements of this Clause 15 shall be of the essence of the order and default under this Clause 15 shall constitute a material breach of the order. 13.8 Supplier is and remains solely responsible for the full compliance of delivered products, parts of products or substances with the requirements of Regulation (EC) No. 1907/2006 (REACH) as of 18 December 2006 as amended or varied and including all further releases as well as any national regulations issued in execution of this Regulation. Supplier guarantees that all obligations under REACH have been fulfilled. In particular, Supplier guarantees that each chemical substance constituting or contained in products or parts of products delivered to Buyer is pre-registered and/or registered, if required, and is authorized also for Buyer's use if subject to authorization under REACH, that any conditions of a restriction under Annex XVII of REACH are met, if applicable, and that Seller will fulfill its obligation to provide comprehensive safety data sheets in compliance with REACH and the information required to be provided under Articles 32 and 33 REACH, if applicable. Seller will monitor the publication by the European Chemicals Agency of the list of substances meeting the criteria for authorization under REACH (substances of very high concern on the "candidate list ") and immediately inform Buyer if any of the products or parts of products delivered to Buyer contain a substance officially proposed for inclusion into the candidate list. Supplier undertakes to duly and immediately inform Buyer of any changes affecting REACH compliance and to provide any information required by Buyer without request in order to ensure REACH compliance. Insofar as products, parts of products or substances are not supplied in accordance with the aforementioned requirements, Buyer reserves the right to cancel blanket or single orders. In the event that the Supplier is situated outside the EU, the Supplier and the Buyer shall discuss who shall be responsible for the importer's obligations under REACH and, if this is the Supplier, the Supplier shall appoint an Only Representative under the meaning in REACH for this purpose. In case of cancellation of blanket or single orders or proven violations of national or international REACH compliance regulations by the Supplier, Supplier undertakes to exempt and hold Buyer harmless from any claim, liability, loss, damage, judgment and external responsibility, irrespective of their legal ground, and to bear any and all harm, loss or damage arising to Buyer’s disadvantage in the event of infringement. 13.9 The Supplier shall comply with all International Plant Protection Convention (“IPPC”) regulations on solid wood packaging material (“SWPM”) as outlined in ISPM-15 and elsewhere. Supplier shall ensure, and provide appropriate certification, that all SWPM shall be marked with the IPPC logo, country code, the number assigned by the natural plant protection organization and the IPPC treatment code. 13.10 Supplier shall comply with all relevant and applicable national or international regulations and/or codes of practice relating to the packing, labelling, transportation, storage and handling of any hazardous substances forming part of the Goods. The Supplier shall provide the Buyer with full information about any substance supplied under the Contract which is either known to be, or could reasonably be expected to be, hazardous to the health or safety of persons installing it or using it in connection with their work and/or operating any part of the Goods, whether or not such information must be provided under any applicable law or regulation. When no such substances are present, the Supplier shall provide a written statement to that effect. 13.11 Unless otherwise stated in the Contract or in applicable law, upon request Supplier shall provide Buyer with certificates of conformity with all laws and regulations applicable to the Goods, Services and/or product of the Services.
- LAW: The Contract shall in all respects be construed in accordance with the laws of Belgium excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods, and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the Belgian courts.