General
purchasing terms and conditions
Simonett W SA
de CV
1.
Applicability
1.1. These general
purchasing terms and conditions (“General Conditions”) apply to all purchases
of products and services made by Simonett W SA de CV (Ampere) and/or the
companies controlled by it (the “Purchaser”) unless specified otherwise in
writing.
They shall supersede,
without exception, any and all of the Supplier’s conditions of quotation,
acceptance, purchase and/or supply delivery notes.
Acceptance of the
order by the Supplier automatically entails acceptance of the General
Conditions.
1.2. Purchaser shall
only be bound if the purchase order is made in writing. The purchase agreement
(“Agreement”) shall become effective on the date when the order is accepted in
writing by mail, facsimile or e-mail by the Supplier, unless a separate
agreement was already entered into.
Any failure of the
Supplier to confirm an order within 5 (five) working days shall be deemed an
acceptance of such order. Supplier shall not make any deviating comments in the
order acceptance otherwise the Purchaser shall be entitled to cancel the order
without any right of the Supplier to compensation.
The Agreement consists
of the order, specific conditions agreed upon in writing by Purchaser and these
General Conditions, to the exclusion of any deviating comments in the
acceptance form unless agreed explicitly in writing by Purchaser.
2. Price and Payment
2.1. The prices
specified in the order are fixed prices. The invoices shall be sent in
duplicate to the billing address and according to any specific billing
instructions specified in the order or afterwards. All invoices shall specify the number of the order and
the delivery note.
2.2. Payment does not in any way imply either
acceptance or agreement by the Purchaser that the products and / or services
conform to the terms and conditions of the Agreement and shall in no way imply
a waiver of any right arising from the Agreement or the General Conditions.
Under no condition shall Supplier be entitled to suspend or interrupt any
deliveries or services in case of late or incomplete payment under any
agreement by the Purchaser.
2.3. The Purchaser may
without notice to the Supplier set-off any amounts owed by the Supplier to the
Purchaser under any order or agreement or the performance thereof, whether or
not Supplier disputes such amounts, against any amounts owed by the Purchaser
to the Supplier, regardless of the places of payment or currencies of the
respective amounts.
3. For Work performed
on the Purchaser’s premises, the Supplier shall observe the company, safety and
other regulations applicable in the Purchaser’s organization.
4. Intellectual
Property Rights
4.1. Subject to an explicit written permission
thereto by Purchaser, Supplier may use any trademarks, logos and/or any other
intellectual property rights owned by Purchaser. Supplier shall use these
intellectual property rights in accordance with the instructions of Purchaser
only. Supplier shall not misrepresent or damage such intellectual property
rights. Supplier shall inform Purchaser immediately of any infringement or
possible infringement of any of the intellectual property rights.
4.2. Intellectual property rights, whether or
not patentable, created by Supplier or any of its employees during the
performance of the Agreement or upon request of the Purchaser shall
irrevocably, immediately and automatically be transferred to the Purchaser upon
creation and all related moral rights shall be waived by the Supplier. Supplier
shall make sure that any intellectual property rights created by his employees
during the performance of the Agreement are transferred to Purchaser. The
Purchaser is allowed, upon its own discretion, to file also for protection of
the intellectual property rights created by Supplier during the performance of
the Agreement. All drawings, manuals, software and other items required for use
shall also be supplied to the Purchaser in the language of the Purchaser and
shall become the Purchaser’s property, without additional compensation.
4.3. The Supplier guarantees that the use of
the delivered products and/or services constitutes no infringement on any right
of a third party pertaining to intellectual or industrial property and shall
defend, indemnify and hold harmless Purchaser in that matter against any and
all claims of third parties.
5. Confidentiality
5.1. Any plans,
drawings, documents or any other information provided by Purchaser covered by
intellectual property rights of Purchaser or not, are the property of Purchaser
and may not be communicated to third parties nor used for any purpose other
than for the performance of the Agreement and shall be returned upon first
request. The Supplier shall verify the correctness and correlation of this
documentation before performance of the Agreement and report deviations or
defects to Purchaser.
5.2. The Supplier
shall observe secrecy with regard to everything relating to the Purchaser’s
business that comes to its attention, except only where the Supplier is under a
legal duty to make some information public or the information has become public
knowledge for a reason that is not the fault of the Supplier. The Supplier
shall impose the same obligation on employees and/or third parties called to
perform its agreements in conformity with the requirements set out in Article
8. Unless this is agreed upon otherwise in writing by the Purchaser, the
Supplier cannot use the Purchaser as a reference.
6. Liability
The Supplier shall
fully and unreservedly indemnify and hold the Purchaser harmless from and against any and all losses, costs,
damages, expenses (including reasonable lawyer’s fees), harmful effects which
Purchaser may incur as well as claims by third parties in respect of any loss
or injury occurring as a result of (i) any defects in the products and/or
services delivered , (ii) delay in delivery, (iii) breach of any of the
Supplier’s representations under the Agreement.
Except in case of
malicious intent of the Purchaser, the latter shall not be liable, even in case
of gross negligence, for any loss or injury that is in any way incurred or
suffered by the Supplier, its property or employees, or by third parties. The
Supplier holds the Purchaser harmless against any claims made against it by
persons it employs or by third parties, according to Article 6.2 above, except
in the case of malicious intent of the Purchaser. 6.4. The remedies set forth
in this Agreement are cumulative, and shall not preclude any other remedy
available to Purchaser at law or in equity.
7. Timing
Supplier warrants that
it has sufficient business capacity in order to perform the Agreement in a
timely and appropriate manner. Delivery of products or performance of services
shall be made at the time specified in the order or within the period agreed by
the parties in writing. Such date or term is binding and the Supplier shall be
automatically in default by the non-respect of this date or term, Purchaser not
being obliged to give notice of default. In such event, and without prejudice
to any other rights or remedies available under the applicable law or the
Agreement to obtain full compensation for the incurred costs and damages,
Purchaser is entitled to: (i) reject the parts of the Products and / or
Services that have been delivered late and (ii) after a grace period of one
week, notify the release from all further obligations under the relevant order.
8. Assignment –
subcontracting
The Supplier shall not
be permitted to transfer the Agreement or arrange for performance of the order
by a third party or third parties, in whole or in part, without the prior
explicit written consent of the Purchaser.
9. Force Majeure
Force majeure shall
mean any unforeseen event which is beyond the reasonable control of the parties
or any foreseeable occurrence the consequences of which may not reasonably be
avoided that arise after the acceptance of the order and which prevents
performance of the Agreement, in whole or in part, by either party. If a third
party fails to meet the obligations it has accepted in relation to the Supplier
or fails to meet such obligations in good time or in an appropriate fashion,
this shall not be deemed to be force majeure affecting the Supplier. Force
majeure shall cause the suspension of the obligations of the Purchaser and the
Supplier under the Agreement for the duration of the delay caused by the event
of force majeure and the period of performance shall be automatically extended
without any penalty for an equal period. The Supplier shall notify the
Purchaser of the occurrence of a case of force majeure explaining its reasons
immediately by telephone or otherwise and confirmed in writing on the day on
which it occurs and shall inform the Purchaser of further developments in the
same way, failing which it shall loose the right to invoke the occurrence of
force majeure, without prejudice to the conditions respectively laid down in
Article 10.
Supplier shall make
all reasonable efforts to eliminate or at least minimise the effects of this
force majeure.
10. Termination
10.1. The Purchaser
may terminate the Agreement in whole or in part by registered letter, with
immediate effect, for cause:
a) if the Supplier
fails to meet its obligations to the Purchaser or fails to meet them in good
time, completely or in an appropriate fashion;
b) if the Supplier is
declared bankrupt, applies for the suspension of payments, is wound up or
otherwise appears to be insolvent;
c) if the force
majeure remains in existence for longer than 1 (one) month;
d) if, in connection
with the performance of the Agreement or in any other connection, the Supplier
behaves in such a way that the Purchaser’s confidence in the relationship is
totally disturbed or that the Purchaser cannot be reasonably expected to
continue the relationship. If the Agreement is terminated for cause as
mentioned above, the Purchaser shall not be obliged to provide compensation in
any form. Except if the Agreement is terminated as a result of force majeure,
the Supplier is bound to indemnify the Purchaser against any claims from third
parties resulting from termination. The Supplier shall repay immediately the
costs already incurred and monies unduly paid by the Purchaser, without
prejudice to the Purchaser’s right to claim full compensation.
10.2. The Purchaser
may also terminate the Agreement for convenience at any time by registered
letter with respect of a 3 (three) months’ notice, commencing on the date of
the postmark. The Supplier shall not have any right to claim compensation as a
result of termination under this paragraph, except if the Supplier informs
Purchaser by registered letter within one week from delivery of the notice of
termination proving that production had already commenced before receipt of the
notice of termination. In the latter case, the Purchaser shall be entitled to
choose between taking delivery of what has been produced already and
compensating the Supplier for the costs already incurred. In the case of supply
of services, no other compensation shall be due than the payment of the work
already performed to the exclusion of any other damages such as, but not
limited to, loss of profit or loss of turn over.
11. Inspection The
Purchaser may arrange for the performance of any checks on the products or
services to be delivered, and may for this purpose enter the premises where the
products are being manufactured or the services are being rendered upon
reasonable prior notification in writing.
12. No Waiver
Any failure or delay
by Purchaser in exercising any right under the Agreement and/or these General
Conditions, any single or partial exercise of any right under the Agreement
and/or these General Conditions or any partial reaction or absence of reaction
by Purchaser in the event of violation by the Supplier of one or more
provisions of the Agreement and/or these General Conditions, shall not operate
or be interpreted as a waiver (either express or implied, in whole or in part),
nor shall it preclude any further exercise of any such rights. Any waiver of a
right by Purchaser must be express and in writing. If there is an express
written waiver of a right by Purchaser following a specific failure by
Supplier, this waiver can not be invoked by Supplier in favour of a new
failure, similar to the prior one, or in favour of any other kind of failure.
13. Applicable law and
Jurisdiction
13.1. All issues,
questions and disputes arising out of or relating to the Agreement shall be settled
by the corresponding courts in Mexico.
14. Delivery
14.1. Unless otherwise
agreed in writing, delivery is to be made in accordance to the ICC Incoterms
being in effect at the time of delivery, to the warehouses of the Purchaser or
any other location indicated in the order and is to be accompanied by an
appropriate, duly completed delivery note.
Upon delivery of the
products, the Supplier shall provide, free of charge, all documents and manuals
related to the products which are required by law or which are required in
order to comply with applicable customs, product marking, country of origin,
and other laws. Delivery of more or less than the agreed quantities and partial
deliveries shall only be allowed if expressly accepted in writing by the
Purchaser.
14.2. Risk of loss or
damage to the products shall pass from the Supplier to the Purchaser upon
acceptance by the Purchaser. The title to the products is transferred upon
delivery to the Purchaser.
14.3. If assembly
and/or installation by Supplier are comprised, this shall occur according to
the schedule approved in advance by Purchaser in writing and Supplier shall
frequently report upon the progress.
15. Acceptance –
Rejection
15.1. Signature of the delivery note by the
Purchaser shall only apply to the number of packages referred to in the
delivery note. The Purchaser is not obliged to carry out acceptance checks.
Acceptance of the products shall take place exclusively through the
appropriation of the products without reservation. Any costs arising from
delivery at the wrong address shall be solely borne by the Supplier, even if
the products were delivered and the delivery note was signed off by Purchaser.
15.2. If the products
are rejected, in whole or in part, by the Purchaser or by an authorised agent,
or if the products fail to comply with the Agreement, in whole or in part, the
Supplier shall, at the sole discretion of the Purchaser, remedy the lack of
conformity in order to ensure full conformity to the Purchaser’s satisfaction
and / or deliver substitute goods that fully comply with the Agreement and / or
shall take back the products delivered in whole or in part with the
corresponding repayment of the monies already paid and without prejudice to
Purchaser’s other rights under the Agreement and/or these General Conditions.
In case of rejection
the Purchaser may also at its sole discretion procure replacement goods from a
third party and claim back the extra costs from Supplier. In case of rejection
the rejected products remain at the risk of the Supplier. The rejected products
shall be stored by the Purchaser at the risk and costs of the Supplier, who
shall collect the rejected products within 5 (five) working days after rejection.
The Purchaser’s failure to inspect the products or to properly inspect the
products or to notify or to properly notify and/or give timely notification to
the Supplier of any defects, be it in quantity, specifications or otherwise, or
of any quantity deviations, shall not relieve the Supplier of any of its
obligations hereunder or under the applicable law.
15.3. Until the
modification or redelivery referred to above has been made, the Purchaser shall
be entitled to suspend its payments, even if the invoices are not protested,
and to offset the losses and costs incurred, even if the conditions for set-off
by operation of the law are not or not entirely met. In addition, the Purchaser
shall be entitled to be fully compensated for all costs and losses and to
terminate the Agreement in accordance with Article 10.
16. Packaging and
transportation
The products to be
delivered shall be packaged, stored and transported in compliance with all the
relevant national and international legislation and regulations, and shall also
conform to the specifications made in this regard by the Purchaser in the order
or, in the absence of such specifications, to the specifications that are
usually made for similar products in the normal course of business. The
Supplier shall take back all its packaging free of charge at the Purchaser’s
request.
17. Warranty – Quality
17.1. Without
prejudice to any stricter legal or other obligation, Supplier warrants that all
the products to be delivered are (i) in compliance with the Purchaser's
Supplier Requirement Manual (ii) in compliance with the agreed specifications,
characteristics and requirements, or in the absence thereof, with the usual
specifications, characteristics and requirements that are made of such products
in the normal course of business (iii) in compliance with all the national and
international standards and regulations applicable at the time of delivery (iv)
free from all defects in design, workmanship, materials and method of assembly and
(v) in compliance with safety and environmental laws, rules and/ or
regulations. The Supplier shall inform itself in advance of the use and purpose
of the products and guarantees that the products are fully suitable for the
specific intended purpose. The products shall be of good and consistent quality
at all times. The Supplier further warrants the Purchaser that the products
shall be free of all liens, encumbrances, and rights of third parties. Any
attempt by the Supplier to limit, disclaim, or restrict any of the warranties
above or any of the remedies of the Purchaser, shall be null, void and
ineffective without Purchaser’s prior and express written consent.
17.2. The above
mentioned warranty is given for a period of 12 (twelve) months following delivery
of the products to the Purchaser, unless a longer period is agreed upon in
writing. For machines or equipment this period starts when the Purchaser
confirms in writing that the assembly and/or installation is finished to its
satisfaction insofar this is included in the delivery. If it is established by
the Purchaser during this period that the quality specifications are not
(longer) met, the Supplier shall immediately deliver free of charge all the
parts, material and work necessary for the repair of the defect or replacement
of the Product free of charge without prejudice to any other rights of - 7/8 -
Purchaser under the Agreement. The expiry of the warranty period does not limit
the liability for latent defects on the part of the Supplier.
17.3. The Purchaser may arrange for the
performance of any checks on the products to be delivered, regardless of where
the products are situated, and may for this purpose enter the premises where
the products are situated.
18. Performance of
services
18.1. The Supplier is
obliged to perform the services within the agreed time period according to a
schedule approved in writing by Purchaser. Exceeding of this time period will
cause the Supplier to be in default without notice being required. The Supplier
is obliged to furnish Purchaser with timely advance notification of the
progress and of any threat of exceeding of the time limit. Such advance
notification and the absence of reaction thereto by Purchaser does not release
the Supplier from its liability in the event of actual exceeding of the time
limit.
18.2. The Supplier
shall at its own expense see to the performance of the work and/or hiring of
employees, necessary permits, exemptions, approvals and decisions.
18.3. When, in the
opinion of the Supplier, the agreed works have been completed, it shall inform
Purchaser thereof in writing. Within 14 (fourteen) days after receipt of this
notification, Purchaser shall notify the Supplier whether or not he accepts its
performance. If rejecting the performance, Purchaser shall inform in writing on
shortcomings which prevent it to accept the performance. The taking into
operation of the work by Purchaser shall not be considered as acceptance
thereof. With the acceptance of the work performed, the rights of Purchaser in
the matter of shortcomings by Supplier do not lapse, irrespective of whether
during the acceptance term; it has discovered or reasonably could have
discovered such shortcomings and did not notify such to the Supplier.
19. Guarantee
19.1. Supplier
warrants that it has, and will continue to have during the term of the
Agreement, the required skills, experience, licenses and permits required for
the proper performance of the Agreement. Supplier undertakes to involve only
personnel who is professionally trained and duly motivated and has the
appropriate skills and expertise for the performance of the services. Supplier
shall cause its personnel to act responsibly in all circumstances and be of an
irreproachable conduct. The personnel of the Supplier that is involved in the
performance of the Agreement remains at any time under the sole responsibility,
guidance, authority and supervision of the Supplier.
19.2. The Supplier
guarantees that (i) the services are performed in a professional and skillful
manner, meeting best industry practices, in conformity with the service levels
and specifications, technical or other and in full compliance with all
applicable laws or administrative standards, orders or regulations, including
without limitation those related to safety, environment, hygiene and hazardous
materials and in accordance with practices of care and skill; (ii) the services
shall be free from defects in material and/or defects in workmanship; (iii) the
services are in compliance with all applicable laws, regulations and codes.
19.3. The Supplier
guarantees that the intended result and requirements, of which the Purchaser
has informed the Supplier, shall be achieved. If the work activities include in
advising, the Supplier guarantees the relevance, correctness and completeness
thereof. The Supplier guarantees furthermore, the suitability and good quality
of designs, drawings, guidelines, materials etc. furnished by it.
19.4. If any services
do not comply with the foregoing warranties, Purchaser may, at its sole discretion,
at Supplier’s sole expense and without prejudice to its other rights under the
Agreement and/or these General Conditions: (a) reject such services (b) require
Supplier to correct such services as necessary to render them in conformity
with the foregoing warranties, and consistent with Purchaser’s time schedule;
(c) return such work and receive a full refund of the contract price; or (d)
without prior court authorisation make itself or have made by a third party at
the costs and the risk of the Supplier any corrections required to cause such
services to comply with the specifications and warranties.
Supplier shall
reimburse Purchaser for all costs and expenses incurred by Purchaser in
connection with a breach of the foregoing warranties (including transportation,
storage, administrative, and other incidental expenses of Purchaser).
20. Changes in the
scope Purchaser can at its sole discretion at all times change the ordered work
insofar he confirms this first in writing. The Supplier must advise the
Purchaser immediately about the effects of such a change on the quality, the
quantity, the time frame, the safety, the feasibility, the risks etc. of the
work. The agreed remuneration shall in that case be adjusted in proportion to
the extra or less work activities to be performed. Supplier has to perform the
ordered changes immediately and, pending discussions about remuneration
adjustment, may not suspend his services. Supplier cannot unilaterally change
the scope of the order.