Purchase terms and conditions

 

1. DEFINITIONS AND INTEGRATION 

“Buyer”, “Seller”, will be identified and defined as set forth within the Purchase Order. Seller agrees to sell and Buyer agrees to buy the goods, work and/or services described in and furnished under the Purchase Order (the “Goods”), for the price and on the terms of payment shown herein. The Purchase Order, including these Terms and Conditions, together with the purchase order form, and the attachments, exhibits and documents expressly referenced therein (collectively, the “Purchase Order”), becomes effective when executed by both the Buyer and Seller. The Purchase Order constitutes the entire agreement between Buyer and Seller with respect to the Goods, superseding all proposals, negotiations and counter-proposals. Buyer will have no obligation to make any payment to the Seller before and unless the Purchase Order becomes in full force and effect in accordance with this Paragraph 1. 

 

2. CONTROLLING TERMS

Buyer objects to the inclusion of any different or additional terms by Seller in Seller’s acceptance of the Purchase Order. Electronic commerce transactions between Buyer and Seller will be solely governed by the Purchase Order and any terms and conditions on Seller’s internet site will be null and void and of no legal effect on Buyer. lf the Purchase Order has been issued by Buyer in response to an offer by Seller, and if any of the terms herein are different from or additional to any terms of Seller’s offer, then the issuance of the Purchase Order by Buyer will constitute a conditional acceptance of Seller’s offer as amended by Buyer and result in a binding contract if Seller assents by execution or performance hereof to Buyer’s different and/or additional terms. lf Seller includes or attaches any such different and/or additional terms in Seller’s purported and executed acceptance, but proceeds to commence performance or tender all or any part of the Goods, Seller expressly agrees that such execution constitutes an acceptance of Buyer’s Purchase Order and a binding contract will result solely upon Buyer’s terms and conditions as stated in the Purchase Order, which contract will not include Seller’s different and/or additional terms or conditions. Seller’s acceptance of the Purchase Order is assumed unless otherwise stated. 

 

3. CONFLICTING REQUIREMENTS 

Upon Seller’s discovery that any requirement or provision of the Purchase Order or its attachments may conflict with any other requirement or provision contained therein, it is Seller’s responsibility to give Buyer written notice of such alleged conflict, for resolution by Buyer according to Buyer’s sole discretion. lf Seller proceeds with performance without notification to Buyer for resolution of such conflict, then all costs incurred in correcting Seller’s erroneous interpretation will be for Seller‘s account. 

 

4. INSPECTION, EXPEDITING, AND DOCUMENTATION 

Seller is fully responsible for the implementation of the Purchase Order, including as applicable for the design, fabrication, manufacture, production, packaging and construction of the Goods, and for compliance with all terms, conditions, specifications, drawings, and other requirements of Buyer, in accordance with the laws and codes of any applicable jurisdiction. Seller will have the obligation, and Buyer will have the right, to inspect and expedite the Goods in process of manufacture, in storage, in transit, and upon delivery to assure compliance herewith. Buyer will be supplied by Seller upon request or as needed with data, drawings, specifications, test results, quality documentation, schedules and other documents and information in accordance with the documentation requirements included in the Purchase Order. Buyer’s inspection, waiving of inspection, review, approval, or acceptance of the Goods or provision of any information, drawings or data hereunder will not relieve or discharge Seller either expressly or by implication of Seller’s responsibilities and obligations under the Purchase Order. 

 

5. TIME OF PERFORMANCE 

SELLER ACKNOWLEDGES THAT THE DATE(S) OF DELIVERY SPECIFIED ARE CRITICAL AND TIME IS OF THE ESSENCE OF THE PURCHASE ORDER FOR THE AVOIDANCE OF SUBSTANTIAL LOSS TO BUYER AND/OR VARIOUS CONTRACTORS. SELLER’S FAILURE TO MEET THE DELIVERY DATES WITHOUT BUYER’S WRITTEN CONSENT MAY CONSTITUTE A BREACH OF CONTRACT OR DEFAULT OF THE PURCHASE ORDER.  

In the event of delay, or anticipated delay, from any cause, Seller will immediately notify Buyer in writing of the delay or anticipated delay, and its approximate duration, and Seller will undertake to shorten or make up the delay by all reasonable and expeditious means. Buyer, at its option, may require or approve in writing a new shipping or delivery date, or progress requirements, in response to Seller’s notice. lf Seller fails to meet the shipping or delivery date or progress requirements established in the Purchase Order, the Buyer can deduct from the Price or (if the Company has paid the Price) to claim from the Supplier by way of liquidated damages for delay 10% of the Price for every week’s delay, up to a maximum of 100% of the Price; Buyer may in such case, without penalty, cancellation or other fee, and without prejudice to any other rights which it may have, cancel all or any part of the Purchase Order and make such other arrangements as Buyer may consider necessary or desirable under the circumstances. The rights and remedies provided in this Paragraph 5 and elsewhere in the Purchase Order are in addition to, and not exclusive of any right or remedies provided by law or in equity. 

 

6. TITLE, SHIPMENT, AND RISK OF LOSS 

Unless otherwise specified herein, title to the Goods (and in the event that the Goods are made to order, then title to all material, inventory and working progress, design data, other documentation, and all contractual rights thereto) will vest in Buyer immediately upon acceptance of the Goods by Buyer. If Goods are made to order and the Purchase Order specifies that title will vest in the Goods upon identification to the Purchase Order, upon such passage of title, Seller will take action to segregate the Goods and clearly label them as property of Buyer. Seller warrants free and clear title to the Goods, free and clear from any and all liens, restrictions, reservations, security interests and encumbrances. Seller is responsible for properly and carefully packing and shipping the Goods, at its expense unless otherwise specified herein, and will comply with any documentary requirements or instructions of Buyer in the shipment process. Irrespective of vesting of title and any other provision herein to the contrary, Seller will bear the risk of loss and damage, and will insure or self—insure for the benefit of Seller, Buyer, and the Goods in its care, custody and control, including free issue material supplied to Seller for incorporation into, or work in conjunction with the Goods until the same are delivered in good condition and accepted by Buyer in accordance with the provisions of the Purchase Order. 

 

7. CONFORMING GOODS AND ACCEPTANCE 

The Goods will conform strictly to the description, data, drawings, plans, specifications, packaging, labeling, performance criteria, and sample if any, and other requirements of Buyer. The Goods will be new, of the latest design or model conforming to any Buyer requirements, intended under the Purchase Order, and of the best quality. No substitution in whole or in part will be permitted without the prior written approval of Buyer. Prior to shipment, Seller will carefully inspect and test the Goods for conformance to the requirements of the Purchase Order. lf the words “or equal” are used in the Purchase Order, proposed equals must be approved in writing in advance by Buyer. There will be no substitutes or shipment of more or less than the quantity specified without the prior written approval of Buyer.  Upon delivery of the Goods or in any other location or time as may be specified herein, Buyer will conduct a visual inspection of the Goods in accordance with its standard procedures and may accept or reject the Goods, in whole or in part, provided that Buyer reserves all rights provided for herein to reject any Goods, in whole or in part, at a later time upon discovery of a latent defect not apparent by such normal visual inspection. lf Goods received do not conform to those ordered, or if more or less than the quantity ordered are shipped, Buyer may reject such shipment in whole or in part by giving notice thereof to Seller. Seller will remove any rejected Goods at SeIIer’s expense within ten (10) working days after notice. If any Goods are rejected by Buyer, Seller shall not ship any replacement Goods without the prior written approval and directions of Buyer. For any defective, non-conforming, or rejected Goods, Buyer may cancel the Purchase Order in whole or in part without any obligation to pay a cancellation fee or other fee or penalty. Buyer reserves the right to hold Seller responsible for any and all costs arising from the non-conformity of the Goods. 

 

8. WARRANTY 

Seller warrants to Buyer that the Goods furnished under the Purchase Order, whether manufactured, fabricated, or otherwise produced or provided by Seller or others, will (a) strictly conform to the descriptions, data, drawings, plans, specifications, performance criteria, and sample if any, and other requirements referred to herein or provided by Buyer to Seller; (b) conform with all applicable laws, ordinances, codes and regulations. lf required by Buyer, Seller will supply satisfactory evidence of the origin, composition, manufacture, kind and quality of the Goods. Seller further warrants that the Goods will be of sufficient size and capacity, and of proper materials, to properly perform the functions specified in the Purchase Order. 

 

9. WARRANTY REMEDIES 

lf, within the warranty period specified in Paragraph 8 above, Buyer discovers any defect, error, noncompliance, nonconformity, omission, operational or performance deficiency or breach of any warranty as to the Goods, Seller will promptly repair, re-perform, or replace without cost the Goods in question (including removal, reinstallation, access, shipping, and labor costs). If Seller fails after reasonable notice to proceed promptly with and complete the repair, re-performance, or replacement of the defective Goods, Buyer may repair, re-perform, or replace the Goods and charge all related costs (including labor and access costs) to Seller without voiding the warranties herein, and without Buyer waiving any other rights or remedies it may have under the Purchase Order. Such repair, re-performance, or replacement will be warranted for a period of twelve (12) months from its acceptance by Buyer. If Buyer determines, for any reason, that the remedies provided for herein are not adequate or feasible, Buyer may elect to have such Goods removed at Seller’s expense and any portion of the purchase price paid refunded in full. Any Buyer will have the benefit of the foregoing warranty and warranty remedies in Paragraphs 8 and 9 herein, and such rights and remedies are in addition to any other rights or remedies provided in law, equity, or under the Purchase Order. 

 

10. LAWS 

ln its performance under the Purchase Order, Seller agrees to strictly comply with all applicable laws, treaties, ordinances, codes and regulations, and specifically with, but not limited to, any import and export, and health, safety and environmental laws, treaties ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city, or local) where the Purchase Order may be performed. Upon Buyer’s written request, Seller will provide any certification of compliance required by any jurisdiction (whether international, country, region, state, province, city, or local) where the Purchase Order may be performed and any certification required by the Buyer as specified in the Purchase Order. 

 

11. IMPORT AND EXPORT COMPLIANCE 

Seller agrees that, in its performance under the Purchase order, it is solely responsible for any and all documentation required to comply with the importation laws and regulations of the relevant jurisdiction as specified in the Purchase Order. 

 

12. PATENTS, COPYRIGHTS, TRADEMARKS AND TRADE SECRETS 

Seller warrants, represents and covenants that the design, fabrication, manufacture, production, sale, distribution and intended use of the Goods do not infringe directly or indirectly, in whole or in part, any patent, copyright, trade secret, trademark, trade name, or other intellectual property right, and Seller agrees to release, defend, protect, indemnify and hold Buyer and their affiliates, and their respective directors, officers, employees, contractors, agents, suppliers, users, successors, and assigns, harmless from and against any and all costs (including attorney fees and court costs), expenses, fines, penalties, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action arising from or related to the design, fabrication, manufacture, production, sale, distribution or use of the Goods. 

 

13. ASSIGNMENT AND NOTICE OF SELLER CHANGES 

Seller will not sell, assign, or transfer the Purchase Order, or any part hereof, or any money due hereunder, without the prior written consent of Buyer. If consent is granted, any such assignment by Seller will not (a) increase or alter Buyer’s obligations, (b) diminish the rights of Buyer or (c) relieve Seller of any of its legal obligations under the Purchase Order. Buyer reserves the right to assign the Purchase Order, in whole or in part, to any party, including Buyer’s affiliates. Seller will give Buyer prompt written notice of any material change in its ownership or organization or any other operational change which may affect its performance under the Purchase Order, including in the manufacture or production of the Goods, however, in such event Buyer reserves the right to cancel the Purchase Order without obligation under Paragraph 14. 

 

14. CANCELLATION 

Unless otherwise provided in the Purchase Order, Buyer has the right at any time to cancel all or any separable part of the Purchase Order by written notice. Termination by Buyer for cause is covered under Paragraph 21. No cancellation payment will be owed by Buyer to Seller unless mutually agreed upon in writing, and any such payment will be based on that portion of the Purchase Order price as the work satisfactorily performed to the date of the cancellation bears to the entire work contracted for, less any money paid to Seller. Seller will not be entitled to any lost revenue, lost business opportunity, or any incidental, indirect, economic, and consequential or other damages because of cancellation. At the time of such cancellation by Buyer, Seller will immediately discontinue all work pertaining to the Purchase Order, including not placing additional purchase orders or making any other commitment, and canceling forthwith any existing purchase orders and commitments on the best possible terms. Pending Buyer’s instructions, Seller will preserve and protect the Goods on hand, work in progress, supplier data, and completed work, both in its own and in its supplier’s’ facilities. lf the Goods have been paid for in whole or in part, Buyer has the immediate right to enter SeIIer’s premises to take possession and remove the Goods and all drawings, records, materials and equipment to be incorporated into the Goods, from SeIler’s premises. 

 

15. CHANGES IN THE GOODS 

Seller will make no unilateral change, substitution, or revision without Buyer’s prior written consent. Buyer has the right to make changes in the character or quantity of the Goods, or in the manner or time of performance of the Purchase Order. Changes will be in writing and signed by a duly authorized representative of Buyer. lf Seller is unable to comply, Seller will notify Buyer in writing, within 5 (five) days of receipt, otherwise such change will be deemed accepted. An equitable adjustment in the price and time of performance will be made by the parties in writing if any change results in a demonstrated decrease or increase in SeIIer’s cost or time of performance, however, no claim by Seller for an adjustment in the price or in the time of performance resulting from any change required by Buyer will be considered unless presented to Buyer in writing within ten (10) days after Seller receives the notice of change from Buyer. 

 

16. INDEMNIFICATION 

Without affecting any of Buyer’s other rights, Seller will indemnify Buyer in full against all liability, loss, including direct, consequential and  special loss or damage (whether for loss of income, profit, business, contracts, goodwill, bargain, saving or otherwise), costs and expenses (including legal expenses) awarded against or incurred or paid by Buyer, or any other claims for compensation which arise out of or in connection with, the supply of Goods or their use or resale by Buyer, including but not limited to: 

  1. breach of any warranty given by Seller in relation to the Goods; or 
  1. any liability under any legislation or regulations in respect of the Goods in any jurisdiction and any act or omission of Seller or its employees, agents or subcontractors in supplying and delivering the Goods; or 
  1. any act or omission of any of Seller’s personnel in connection with the Goods; or 
  1. against all claims by the customers and/or clients of Buyer and their sub-buyers arising out of any breach by Seller under the Purchase Order.

 

17. CONFIDENTIALITY 

All data, designs, drawings, specifications, communications and other information, revealed or disclosed in any form or manner to Seller by Buyer, whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise, and documents supplied, or produced or created by Seller for Buyer hereunder (collectively defined as “Buyer Information”) are proprietary and confidential to Buyer and will be used solely by Seller for purposes of the Purchase Order. All such information will be treated and protected by Seller as strictly confidential, and will not be disclosed to any third party without the prior written consent of both Buyer, and may be disclosed within Sellers organization only on a need-to-know basis. Buyer may require Seller’s employees, contractors, suppliers and other Seller personnel involved in the performance of the Purchase Order to execute an individual confidentiality agreement prior to any disclosure. The provisions protecting Buyer information confidentiality, secrecy, or nondisclosure agreement heretofore executed by Seller in connection with Buyer’s business, the Purchase Order, or any other contract pertaining to the Goods, are hereby expressly incorporated within the Purchase Order. Upon request of Buyer, Seller will immediately return to Buyer any Buyer information provided, either upon demand, or upon completion of the warranty period hereunder, including all copies made by Seller. The obligations of confidentiality ln this Paragraph 17 will also be applicable to any information which may be disclosed to Seller. 

 

18. PUBLICITY 

Seller will not publicize, disclose, or discuss the existence, content, or scope, whether generalities or details, of the Purchase Order or make any reference to Buyer, the business of either, or the project for which the Purchase Order is made, to any third party by any means, and through any medium (including but not limited to advertising, web site references, photographs, articles, press releases or interviews, speeches or programs) without obtaining the prior written consent of Buyer. 

 

19. PAYMENTS, LIENS AND SET OFF 

The price and condition of the Goods as delivered (pursuant to Incoterms 2010 and modifications thereto) is that stated in the Purchase Order. Unless otherwise stated in the Purchase Order, all prices are exclusive of Value Added Tax (if any) and, unless stated otherwise in the Purchase Order, are exclusive of any other tax (including but not limited to Withholding Tax), duty, packaging, packing, shipping, carriage, insurance and delivery (the “Price”).  Seller further agrees: 

  1. No increase, imposts or levies whatsoever in the Price may be made without the prior written consent of Buyer. 
  1. The Purchase Order will state the agreed payment terms with Seller and Buyer will pay the Price for the Goods according to these payment terms. Buyer has the right to deduct from any money it owes Seller, any amount that Seller owes to Buyer, whether arising under the Purchase Order to which the Price relates or not. 
  1. In all of Seller’s invoices, the relevant Purchase Order number must be quoted along with the information required on the advice note (if any).  Buyer is entitled to reject all invoices that do not conform to these requirements. 
  1. Buyer is not liable to Seller if, due to an event beyond its reasonable control, it defers any payment to Seller. 
  1. Any bank charges incurred in relation to the payment of Seller’s invoice by Buyer shall be for Seller’s account. 

 

20. SUBCONTRACTORS, SUBVENDORS AND SUBSUPPLIERS 

Buyer reserve the right to approve or disapprove all subcontractors, sub vendors, or sub suppliers proposed by Seller to be involved in Seller’s implementation of or performance under the Purchase Order. Upon request by Buyer, Seller will submit a listing of all subcontractors, sub suppliers, or sub vendors for review and approval by Buyer and will submit unpriced copies of all its purchase orders or other contracts for materials or equipment procured from third parties pertaining to the Purchase Order. Seller agrees that Buyer has the right to contact or visit any of Seller’s subcontractors, sub vendors, or sub suppliers directly to confirm delivery commitments or the origin, composition, manufacture, kind, quantity, or quality of any Goods provided thereunder. Any approval by Buyer will not constitute a waiver of any term or condition hereunder, at law, or in equity, nor relieve Seller of any obligation herein. Seller will incorporate these Terms and Conditions into any purchase order or other contract issued to any subcontractor, sub supplier or sub vendor for any work to be provided under the Purchase Order. 

 

21. DEFAULT AND TERMINATION FOR CAUSE 

ln the event of Seller’s (a) actual or anticipated breach of or default under any provision of the Purchase Order, or (b) organizational or operational change as stated in Paragraph 13 adversely affecting, or which may adversely affect in Buyers opinion, Seller’s performance hereunder, or (c) bankruptcy, reorganization, receivership, insolvency, or making an assignment for the benefit of creditors, or (d) evidencing financial or organizational instability, Buyer has the right, in addition to any rights or remedies it may have in law, in equity, or under the Purchase Order, to immediately cancel the Purchase Order for cause by written notice to Seller and Seller will not be entitled to any cancellation charge or other fee or penalty hereunder, nor will Buyer be liable to pay any costs of cancellation. In such event, Buyer may immediately take possession of all or any portion of the items identified in the Purchase Order, subject only to an obligation to equitably compensate Seller for same. Upon termination by Buyer as a result of Sellers default hereunder, Seller will be liable to and will immediately reimburse Buyer for all costs of any nature in excess of the Purchase Order price which may be incurred by Buyer to effect completion of performance of the Purchase Order. 

 

22. NOTICES 

Any notice given pursuant to the Purchase Order must be in writing, addressed to the registered office or principal place of business of the addressee or any other address as may, at the relevant time, have been notified as the correct address for service of documents. 

 

23. ENTIRE AGREEMENT 

The Purchase Order and the documents referred to in them (if any), set out the entire agreement between the Parties and supersede any previous agreements between the Parties relating to the subject matter of the Purchase Order. The Seller acknowledges that in entering into the Purchase Order, it has not relied on any representation, warranty, agreement or statement not set out in the Purchase Order and that (in the absence of fraud) it will not have any right or remedy arising out of any such representation, warranty, agreement or statement and that its only remedy for breach of the Purchase Order is for breach of contract under the terms of the Purchase Order. If any provision of the Purchase Order is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions and the remainder of the affected provisions will remain enforceable. 

Unless otherwise specified in the Purchase Order, these Terms and Conditions will be governed by and construed in all respects in accordance with the laws of the Kingdom of Belgium in effect on the date executed by Buyer, exclusive of conflict of law rules and choice of law principles which would deem otherwise. The district courts of Oudenaarde, Province East-Flanders, Belgium have exclusive jurisdiction in case of any conflicts between buyer and seller. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with the Purchase Order, the Purchase Order shall prevail. 

 

24. COMPLIANCE WITH BUYERS MANDATORY POLICIES 

In performing its obligations under the Purchase Order, Seller shall and shall procure that each member of its Group and/or any subcontractors, sub-vendors or sub-suppliers comply with all Buyer’s Mandatory Policies provided to Seller and incorporated by reference into the Purchase Order. The Mandatory Policies shall include but not be limited to Seller’s Business Ethics Code, Vendor Manual (if applicable) and any other Mandatory Policies Buyer may elect to include with the Purchase Order. Buyer may terminate the Purchase Order in accordance with Paragraph 21. 

The Goods will conform strictly to the description, data, drawings, plans, specifications, packaging, labeling, performance criteria, and sample if any, and other requirements of Buyer. The Goods will be new, of the latest design or model conforming to any Buyer requirements, intended under the Purchase Order, and of the best quality. No substitution in whole or in part will be permitted without the prior written approval of Buyer. Prior to shipment, Seller will carefully inspect and test the Goods for conformance to the requirements of the Purchase Order. lf the words “or equal” are used in the Purchase Order, proposed equals must be approved in writing in advance by Buyer. There will be no substitutes or shipment of more or less than the quantity specified without the prior written approval of Buyer. Upon delivery of the Goods or in any other location or time as may be specified herein, Buyer will conduct a visual inspection of the Goods in accordance with its standard procedures and may accept or reject the Goods, in whole or in part, provided that Buyer reserves all rights provided for herein to reject any Goods, in whole or in part, at a later time upon discovery of a latent defect not apparent by such normal visual inspection. lf Goods received do not conform to those ordered, or if more or less than the quantity ordered are shipped, Buyer may reject such shipment in whole or in part by giving notice thereof to Seller. Seller will remove any rejected Goods at SeIIer’s expense within ten (10) working days after notice. If any Goods are rejected by Buyer, Seller shall not ship any replacement Goods without the prior written approval and directions of Buyer. For any defective, non-conforming, or rejected Goods, Buyer may cancel the Purchase Order in whole or in part without any obligation to pay a cancellation fee or other fee or penalty. Buyer reserves the right to hold Seller responsible for any and all costs arising from the non-conformity of the Goods. 

 

 

 

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