General Terms and Conditions of Purchase of Semperit Investments Asia Pte Ltd (“Semperit”)
Edition: September 2013
1. GENERAL PROVISIONS
1.1. Conclusion of a transaction
1.1.1 Unless otherwise agreed all deliveries and services ordered by us shall be subject to these General Terms and Conditions of Purchase ("GTCP"). Terms and conditions of delivery or other contract form sheets of the supplier shall not be applicable even if we do not expressly object thereto.
1.1.2 Purchase orders shall be acknowledged by means of the enclosed reply letter. If we do not receive an acknowledgement of order which fully corresponds to our purchase order within a period of 14 days, we shall be entitled to cancel the purchase order. If we do not cancel the purchase order, the supply agreement with us shall nevertheless exclusively be concluded according to the scope and on the terms and conditions of our purchase order.
1.1.3 If the supplier has submitted an offer, and we subsequently submit a purchase order in response, any terms contained in the supplier’s offer shall be thereby rejected, save to the extent that they have been incorporated into our purchase order.
1.1.4 All agreements and all our statements shall require written form in order to be valid. This requirement shall not refer to purchase orders placed only orally or by fax that include a purchase order number and are subsequently acknowledged in writing; such oral / faxed orders shall take effect as of receipt of the order acknowledgement.
1.1.5 All trade clauses stated in supply agreements shall be understood within the meaning of the Incoterms applicable from time to time unless some other meaning is expressly agreed in writing.
1.1.6 The terms "delivery" and "supply" as used in these GTCP shall include both deliveries of goods and other items (in particular energy and software) and the provision of services and the granting of rights. Wherever the term "goods" is used in these GTCP, the GTCP shall also apply to all other types of deliveries mutatis mutandis.
1.2. Type and period of delivery, title
1.2.1 Deliveries shall be handled according to our instructions. Goods shall be packed properly. Deliveries shall be in compliance with the regulations on safety, packaging and dangerous goods applicable in Singapore; the related papers (e.g. safety data sheets and test certificates) shall be enclosed. With respect to utilisation and disposal of means of packaging our directives and rules shall be observed and co-ordinated with us, if necessary. Unless otherwise agreed deliveries shall be made DDP (named place of destination) according to the Incoterms.
1.2.2 Insurance of the goods against transport damage or other damage shall be taken out by the Supplier. This can be at our cost only if expressly agreed.
1.2.3 Partial deliveries may only be made with our consent.
1.2.4 Delivery periods shall commence on the date of our purchase order.
1.2.5 Title in any goods supplied shall pass to us upon delivery, unless payment for the goods is made prior to delivery, in which case it shall pass to us once payment has been made and the goods have been appropriated to the contract.
1.3.1 All prices shall be fixed prices unless deviating provisions have been agreed.
1.3.2 Payments shall be deemed neither an acknowledgement of proper delivery nor a waiver of any rights whatsoever.
1.4. Untimely delivery
1.4.1 Time of delivery is of the essence of the contract. If the supplier is in default with respect to the delivery date, then 14 days after default started we shall be entitled to cancel the contract with immediate effect and without having to announce our cancellation of the contract and without having to grant a further period of grace. We may nevertheless grant such further period or periods of grace as we, in our absolute discretion, think fit.
1.4.2 If the delivery date is not observed but the supplier ultimately meets its delivery obligation within 14 days thereafter, or within such further period of grace as we may grant, the supplier shall pay liquidated damages in the amount of 0.5% of the total price for each commenced week of delay but not more than 5% of the total price.
1.4.3 If the contract is terminated due to the supplier not rendering performance of the contract within 14 days after the original delivery date or within the further grace period granted, as the case may be, liquidated damages in the amount of 5% of the total price shall be paid in any case (in addition to any liquidated damages for delay payable under the preceding sub-Clause).
1.5. Defective delivery
1.5.1 Unless expressly agreed otherwise the supplier warrants that all goods delivered shall be new (brand-new) and of top quality (1A goods or agreed type of goods), free from defects in design, material and workmanship, state-of-the-art and suitable for their designated purpose.
1.5.2 If we at the acceptance test have determined values regarding the supply quantity, measurements, weights and quality, such values shall be relevant unless the supplier proves them to be incorrect. Our right to claim for defects or to raise any other claims at a later point in time shall not be excluded by the acceptance test.
1.5.3 The supplier shall be responsible for the constant quality of the goods delivered on the basis of his quality assurance system maintained according to Clause 1.7.6 of these GTCP. That means that as soon as the supplier has been admitted as a supplier of Semperit, Semperit will, in principle, no longer inspect the incoming goods. Defectiveness of the goods delivered may be claimed notwithstanding that they have been used for quite a long period of time or have been processed. The warranty claims shall be deemed to have been asserted in time if we have dispatched a written notice of defects within the warranty period.
1.5.4 If defective goods have been delivered, we shall have the option for a period of three years as of delivery to cancel the contract in respect of the defective goods or to demand a price reduction or to demand that the defect be repaired or that non-defective goods be delivered. Improvement or substitute delivery shall be effected immediately and at the supplier's cost. In urgent cases we shall be entitled at the supplier's cost to repair the defect ourselves or to have the defect repaired
1.5.5 If we cannot use the items delivered owing to their defectiveness, the supplier shall have to pay , liquidated damages, commencing from the date on which we gave written notice of such defect, until the defect is remedied, in an amount of 0.5% of the price of the defective goods, for each week or part thereof that the defect remains unremedied, but not more than 5% of the total price. If the defect is not remedied within a reasonable time after such notice was given, we shall be entitled to cancel the contract in respect of the defective goods, in which event liquidated damages in the amount of 5% of the total price shall have to be paid in any case (in addition to any liquidated damages for delay payable under the preceding sub-Clause).
1.6. Business secret
Our purchase orders and all related commercial details and technical details shall be treated by the supplier as a business secret. The supplier may only refer to the existence of business relations with us if we have agreed thereto.
1.7. Safety provisions and other provisions
1.7.1 The goods delivered shall be in compliance with all statutory provisions (laws, regulations, standards, etc.) applicable in the land of production and at the place of delivery and at the place where the goods delivered will be used, in particular safety regulations, accident-prevention rules, standards regarding CE conformity and labelling, industrial safety regulations, environmental regulations, health standards, machine guarding regulations as well as regulations of electrical engineering.
1.7.2 If insolvency proceedings of any kind are opened in respect of the supplier after the contract has been concluded, we shall be entitled to rescind the contract immediately.
1.7.3 The supplier warrants that the goods delivered are not encumbered with rights of third parties and that no patents, proprietary rights or other rights of third parties are violated by our purchase or use of the goods. The supplier shall indemnify and hold Semperit harmless from and against all claims of third parties arising out of a violation of this obligation.
1.7.4 The supplier shall not be free to have contractual services for Semperit provided by third parties in whole or in part unless Semperit expressly agrees thereto (no subcontracting).
1.7.5 An assignment of claims of the supplier under this contract shall require the written consent of Semperit (non-assignment clause).
1.7.6 The supplier undertakes that the goods will be produced and delivered within the scope of a quality assurance system according to DIN ISO 9001 et seq. (or an equivalent system). The supplier shall provide Semperit with evidence of the continuing existence of such a quality assurance system upon request.
1.7.7 If any provision of these GTCP or any contractual agreement between Semperit and the supplier is held by any court or other competent authority to be void, illegal or unenforceable in whole or part, the other provisions of these GTCP or the affected Agreement as well as the remainder of the affected provisions shall continue to be valid, in force and binding. The void, illegal or unenforceable provision shall be automatically deemed replaced by such valid, legal and enforceable provision that comes closest to the business purpose of the replaced provision.
All references to ‘we’, ‘us’ ‘our’ and / or Semperit and / or the purchaser are references to Semperit Investments Asia Pte Ltd.
All references to agreement by Semperit entail agreement in writing signed by an authorised signatory of Semperit.
1.8. Dispute resolution, applicable law
1.8.1 In the event of any disputes arising in relation to these GTCP or any contractual agreement between Semperit and the customer, the dispute shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC") for the time being in force, which rules are deemed to be incorporated by reference to this clause. The place of arbitration shall be Singapore, the language of the arbitration shall be English. The Tribunal shall consist of a single arbitrator, to be appointed by the Chairman of SIAC. The decision of such Tribunal shall be final and binding upon the parties. Notwithstanding the aforesaid, Semperit may at its option elect to seek judicial relief at the court of supplier’s place of business or any other juristiction applicable.
1.8.2 The supply agreement shall be governed by the laws of Singapore. The United Nations Convention on the International Sale of Goods shall not apply.