
Terms
and Conditions Of Purchase
Unless specifically superseded by a contract specific to the
materials, services or materials referred to on the front face of
this order and also referred to thereon, this order is subject to
the following provisions;
1. This order constitutes Buyer’s offer to purchase the materials,
services and articles, all of which are herein called ‘materials’
described elsewhere in this order, in accordance with its provisions
which include the provisions set forth on the face and reverse of
this order, the provisions attached hereto and the provisions incorporated
herein by reference in the case of conflict, the provisions on the
face or reverse of this order shall prevail.
2. Delivery: Unless otherwise stated, delivery shall be deemed
to take place when the materials reach Buyer’s premises or
other notified delivery point.
3. Shipping instructions: Seller shall ship to the delivery point
specified on the order by his chosen methods of shipment. No charges
will be allowed for transportation, Packaging or returnable containers,
unless agreed and stated on the face of the order document. All
shipments must be packaged suitably so as to permit efficient handling
and to provide protection in shipment, and if tendered to a common
carrier for delivery, must also conform to the packaging requirements
applicable to such carrier. Damage to any materials resulting from
improper packaging will be charged to Seller.
5. Specifications: All materials ordered to Buyer’s specifications
must comply with such specifications current as of the date of this
order unless otherwise specified by Buyer.
6. Warranty: Unless otherwise agreed to in writing by the parties,
Seller warrants that materials ordered to specifications will conform
thereto and to any drawings, samples or other description furnished
or adopted by Buyer, or if not ordered to specifications, will be
fit and sufficient for the purpose intended, and that all materials
will be merchantable, of good material and workmanship, and free
from defect. Except for latent defects, fraud or such gross mistakes
of Seller as amount to fraud, notice of any defect or nonconformity
must be given by the Buyer to the Seller within one (1) year after
delivery, or one (1) year after receipt of satisfactory qualification
test reports, if required hereunder, whichever is later.
Buyer may, at its option either return for credit or refund or
require prompt correction or replacement of the defective or nonconforming
article or part thereof. Return to Seller of any defective or nonconforming
article and delivery to Buyer of any corrected or replaced materials
shall be at Seller’s expense. Defective or nonconforming materials
shall not be corrected or replaced unless specified on Buyer’s
written order. Materials required to be corrected or replaced shall
be subject to the provisions of this clause and the clause hereof
entitled ‘Inspection’ in the same manner and to the
same extent as materials originally delivered under this order,
but only as to the corrected or replaced part or parts thereof.
7. Inspection: Acceptance of all materials shall be subject to
inspection and test at all times and places, including the period
of manufacture, by Buyer. If any inspection or test is made on Seller’s
premises, Seller, without additional charge, shall provide all reasonable
facilities and assistance for the safety and convenience of Buyer’s
inspectors. Such inspections and tests shall be performed in such
a manner as not unduly to delay the work. All materials are also
subject to final inspection and acceptance at Buyer’s plant
notwithstanding any payments or other prior inspections. Such final
inspection shall be made within a reasonable time after delivery.
8. Release of news information and advertising: Seller shall not
without the prior written consent of Buyer: (a) make any news release,
public announcement, denial or confirmation of all or any part of
the subject matter of this order, or any phase of any program hereunder;
or (b) in any manner advertise or publish the fact that Buyer had
placed this order.
9. Termination: Without prejudice to any other right or remedy
of Buyer, Buyer shall have the right to terminate this order: (1)
In respect of any article at any time prior to their delivery or
performance by written notice, including fax provided that the Buyer
shall pay a fair and reasonable price for work in progress at the
time of such notice and subsequently received by
Buyer provided that Buyer shall not be liable for any loss or damage
suffered by Seller including consequential loss or damage: (2) If
Seller fails to make any delivery in accordance with the instructions,
terms, conditions or warranties applicable to this order or fails
to make progress so as to endanger performance of this order or
in the event of any proceedings by or against Seller in bankruptcy
or insolvency or appointment of a Receiver or Liquidator or an assignment
or composition for the benefit of creditors, by written notice including
fax to Seller, provided that Buyer shall not be liable for any loss
or damage suffered by Seller including consequential loss or
damage in connection with such termination. Buyer may require and
Seller shall supply on request a financial statement from Seller
at any time during the continuance of this order for the purpose
of determining Seller’s financial position.
In the event of termination pursuant to this sub-clause, Buyer
may produce or purchase or otherwise acquire elsewhere on such terms,
or in such manner as Buyer may deem appropriate and Seller shall
be liable to Buyer for any excess costs or other expenses incurred
by Buyer in so doing.
10. Patent Indemnity: Seller hereby indemnifies Buyer, its successors,
assigns, agents, customers and usurers of the materials against
loss, damage, or liability including costs and expenses, which may
be incurred on account of any suit, claim, judgement or demand involving
infringement or alleged infringement of any patent rights or other
industrial property rights in the manufacture, use, sale, or other
disposal of any materials supplied hereunder, provided Buyer shall
notify Seller of any suit instituted against it and, to the full
extent of its ability to do so, shall permit Seller to defend the
same or make settlement in respect thereof. Buyer does not grant
indemnity to Seller for infringement of any patent or other industrial
property rights.
11. Excusable Delays: Neither party shall be liable for damages
for delay in delivery arising out of causes beyond its reasonable
control and without its fault or negligence, including, but not
limited to, acts of God or of the public enemy, acts of the Government
in either its sovereign or contractual capacity, fires, floods,
epidemics, quarantine restrictions, strikes, freight embargoes,
and unusually severe weather. If the delay is caused by the delay
of a subcontractor of Seller and if such delay arises out of causes
beyond the reasonable control of both Seller and the subcontractor,
and without the fault or negligence of either of them, Seller shall
not be liable to Buyer in damages unless the materials or services
to be furnished by the subcontractor were obtained from other sources
in sufficient time to permit the Seller to meet the required delivery
schedule. Seller will notify Buyer in writing, within ten (10) days
after the beginning of any such cause affecting either it or any
subcontractors.
12. Assignments and novation: Neither this order nor any rights
or obligations herein may be assigned or novated by Seller nor may
Seller subcontract in whole or in part the performance of its duties
hereunder without in either case, Buyer’s prior written consent.
The terms and conditions of this order shall bind any permitted
successors and assigns of Seller. Any consent by Buyer to assignment
or novation shall not be deemed to waive Buyer’s rights to
recovery and/or set of claims arising out of this or any other transactions
with Seller, its divisions, affiliates or subsidiaries, or to settle
or adjust matters with Seller without notice to permitted successors
and assigns.
Sub-contracts: Seller shall not subcontract the requirements of
this purchase order to any third party without obtaining the prior
written permission of Buyer.
13. Changes: Buyer may at any time, by a written notice, make changes
in the specifications, designs or drawings, samples or other description
to which the materials are to conform, in methods of shipment and
packaging, or place of delivery. If any such change causes an increase
or decrease in the cost of, or the time required for, the performance
of any part of the work under this order, whether changed or not
changed by any such order, an equitable adjustment shall be made
in the price or delivery schedule, or both, and this order modified
in writing accordingly. Any claim by Seller for an adjustment must
be made in writing within thirty (30) days of the receipt of any
such notice, provided, however, that Buyer may at its discretion
receive and act upon any such claim so made at any time prior to
final payment under this order. Nothing in this clause shall excuse
the Seller from proceeding without delay to perform this order as
changed.
14. Information: (a) Drawings, data, design, inventions and other
technical information supplied by Buyer shall remain Buyer’s
property and shall be held in confidence by Seller. Such information
shall not be reproduced, used or disclosed to others by Seller without
Buyer’s prior written consent, and shall be returned to Buyer
upon completion by Seller of its obligations under this order or
upon demand. (b) Any information which Seller may disclose to Buyer
with respect to the design, manufacture, sale or Greenwoods Communications
Ltd Limited Terms and Conditions of Purchase use of the materials
covered by this order shall be deemed to have been disclosed as
part of the consideration for this order, and Seller shall not assert
any claim against Buyer by reason of Buyer’s use thereof.
15. Buyer’s property: (a) All property used by Seller in
connection with this order which is owned, furnished, charged to
or paid for by Buyer including, but not limited to, materials, tools,
dies, jigs, moulds, patterns, fixtures, equipment, drawings and
other technical information, specifications, and any replacement
thereof, shall be and remain the property of Buyer subject to removal
and inspection by Buyer at any time without cost or expense to Buyer
and Buyer shall have free access to Seller’s premises for
the purpose of inspecting or removing such property. All such property
shall be identified and marked as Buyer’s property, used only
for this order and adequately insured by Seller at its expense for
Buyer’s protection. Seller shall assume all liability for
and maintain and repair such property and return the same to Buyer
in its original condition, reasonable wear and tear excepted, and
when such property is no longer required hereunder, Seller shall
furnish Buyer with a list thereof and shall comply with any buyer
disposal instructions which may become applicable. Buyer shall not
be obligated to pay any invoices for tooling until the first article
produced there from shall have been received and accepted. (b) Materials
furnished by Buyer on other than a charge basis in connection with
this order shall be deemed to be held by Seller as bailee thereof.
Seller agrees to pay Buyer’s replacement cost for all materials
spoiled or otherwise not satisfactorily accounted for.
16. Gratuities: Seller warrants that neither it nor any of its
employees, agents or representatives has offered or given any inducement,
financial or otherwise, to Buyer’s employees, agents or representatives
with a view to securing this order or securing favourable treatment
with respect thereto and the amount of any such inducement shall
constitute an offset to any amounts payable by Buyer to Seller.
17. Notice to Buyer of Labour Disputes: (a) Whenever Seller has
knowledge that any actual or potential labour dispute is delaying
or threatens to delay the timely performance of this order, Seller
shall immediately give notice thereof, including all relevant information,
with respect thereto, to Buyer. (b) Seller agrees to insert the
substance of this clause, including this paragraph (b), in any subcontract
hereunder as to which a labour dispute may delay the timely performance
of this order.
18. Effect of Invalidity: The invalidity in whole or in part of
any provision hereof shall not affect the validity of any other
provision.
19. Rights, Remedies and Waiver: The rights and remedies provided
herein shall be cumulative, and in addition to any other rights
and remedies provided by law or equity. A waiver of a breach of
any provision hereof shall not constitute a waiver of any other
breach.
20. Law and disputes: Any dispute arising under this order which
is not settled by agreement of the parties may be settled by appropriate
legal proceedings. Pending of any decision, appeal or judgement
in such proceedings or the settlement of any dispute arising under
this order, Seller shall proceed diligently with the performance
of this order in accordance with the decision of Buyer. This order
shall be governed by and construed in accordance with English Law.
21. Buyer Approvals and Reviews: The review or approval by Buyer
of any work hereunder or of any designs, drawings, specifications
or other documents prepared hereunder shall not relieve Seller of
any of its obligations under this order nor excuse or constitute
a waiver of any defects or nonconformities in any materials furnished
under this order, including, but not limited to, the prices and
delivery schedules contained herein.
22. Taxes: Seller assumes exclusive liability under all laws that
impose taxes or other levies on the manufacture or sale of the items
to be furnished hereunder, or any component part thereof, or on
any process or labour involved therein, or on any services to be
rendered by Seller, and to pay any and all such taxes except those
Buyer specifically agrees or is by law required to pay. Any taxes
to be paid to Buyer shall be separately stated on the invoice.
23. Time: Time is of the essence in the performance of this order
by Seller.
24. Title: Except if title has been heretofore passed to Buyer
or Buyer’s customers under other provisions of this order,
title to the materials shall pass to Buyer upon delivery of the
materials to the delivery point named herein or, if none, on delivery
to the Buyer.
25. Indemnity: Seller shall indemnify and hold Buyer harmless against
all damages, costs and expenses incurred by Buyer as a result of
Buyer being required (a) to recall product from Buyer’s customers
or others any materials furnished hereunder or an end product employing
any such materials as a part or component thereof or being a device
with any such article and (b) to repair, replace or refund the purchase
price of such materials or and product to the extent that such recall
and such repair, replacement or refund is based upon a defect, whether
of design or manufacturer in the materials furnished by Seller or
the failure of such materials to conform to any standard to which
such materials are required by law to conform or the failure of
the materials to conform to any specification or standard to which
it is ordered or being supplied in breach of the warranty contained
in paragraph six (6).
In the event that Seller’s materials shall not be the sole
cause for such action by Buyer, then Buyer shall apportion its costs,
damages and expenses in such manner as it shall determine in its
sole judgement is reasonable and equitable.
Buyer shall not be required to consult with, or seek Seller’s
concurrence in the reporting by Buyer to any administrative or regulatory
body, of any information which Buyer obtains indicating that the
materials furnished by Seller either fail to conform to any standard
required by law, or constitute or create of themselves or within
the end product of which they are a part or component, a situation
requiring, recall or notice as defined by the applicable law. Seller
hereby releases and discharges Buyer from any liability for any
error or omission in the reporting of such information unless such
error or omission is attributable to the wilful conduct of Buyer.
Seller shall prepare, maintain and file with the appropriate authority
such records and reports as pertains to the manufacturer, sale,
use and characteristics of the materials furnished to Buyer hereunder
to Buyer hereunder as may be required by any law or regulation concerning
the manufacture, sale or use of the materials or the end products
of which the materials may be part or component and shall provide
Buyer with copies of such records as Buyer may require and permit
Buyer access to Sellers records to permit Buyer to ascertain Seller’s
compliance hereunder.
26. Seller represents that the prices charged for the materials
covered by this order are the lowest prices charged by Seller to
Buyer of the same class as Buyer under conditions similar to those
specified in this order and that prices comply with applicable government
regulations in effect at time of quotation, sale or delivery. Seller
agrees that any price reduction made in the materials covered by
this subsequent to its placement but prior to payment therefore
will be applicable to it.
27. Intellectual Property Rights: The Seller shall ensure that
where the Buyer is paying for the design and development of materials
covered by this purchase order: (a) the property in the design of
such article(s), (b) the IPR in any software generated, and (c)
the copyright of any work generated under this order shall be the
property the Buyer.
28. The Quality requirements shall be as specified on the front
face of this order where applicable.
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