GENERAL TERMS AND CONDITIONS
Unless specifically stated otherwise, the following clauses shall
form the General Terms and Conditions (“GTC”) of this Purchase
Order (“Order”). For avoidance of doubt, these GTC shall form
an integral part of the Order.
- PURCHASER shall mean VISCOSITY OIL COMPANY (“VOC”) or any of itssubsidiaries as properly identified in the Order (“VOC”).
- SUPPLIER shall mean any person and/or company having SUPPLIER shall mean any person and/or company having a contract for the supply of Goods and/or Equipment and/or Services (as the case maybe) to the Purchaser as referred to in the Order.
- GOODS shall mean the materials and/or products to be purchased or to be supplied as specified in the Order and/or any part thereof.
- EQUIPMENT shall mean the equipment to be purchased and/or to be supplied asspecified in the Order and/or any part thereof.
- PERSONAL DATA means any information in respect of commercial transactions which (a) is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose; (b) is recorded with the intention that it should be wholly or partly be processed by means of such equipment; or (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, that relates directly or indirectly to an individual, who is identified or identifiable from the information or from that and other information in the possession of an organization and expression of opinion about individual;
- SERVICES shall mean the services to be purchased and/or to be supplied as specified in the Order and/or any part thereof.
- SANCTIONS shall mean all applicable laws concerning economic sanctions including embargoes, export controls, restrictions on the ability to make or receive international document issued by Supplier in connection with this Orders (which includes any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity) (“Persons”), or the ability to engage in transactions with or involving specified Persons or countries, or any applicable law that threatens to impose economic sanctions on any Person for engaging in targeted behaviour) of any jurisdictions including – (a) the United Nations; (b) Malaysia; (c) the European Union; (d) the United Kingdom (including those administered by HM Treasury); (e) the United States (including those administered by the Office of Foreign Assets Control of the Department of the Treasury, the Bureau of Industry and Security of the Department of Commerce, or the Department of State);
- ORDER shall mean the document containing a request for Goods and/or Equipment and/or Services (as the case maybe) forwarded by the Purchaser to the Supplier.
- CUMULATIVE REMEDIES
- PRICE AND PAYMENT
- HAZARDOUS WASTE
- CHANGE ORDER
- CONFIDENTIAL INFORMATION
- COMPLIANCE WITH LAW
- TITLE AND RISK OF LOSS
- FORCE MAJEURE
- WAIVER AND RELEASE OF LIENS
- RELATIONSHIP OF THE PARTIES
- GOVERNING LAW AND DISPUTE RESOLUTION
- WAIVER; MODIFICATION
- TITLE AND RISK
- SUPPLIER’S INDEMNITY
- LIQUIDATED DAMAGES
- PERSONAL DATA
- EXPORT CONTROL
- SANCTIONS LAWS
This Order will be deemed accepted by the Supplier upon the first of the following to occur: (a) Supplier making, signing, or delivering to the Purchaser any letter, form, or other writing or instrument acknowledging acceptance; (b) any performance by the Supplier under the Order; or (c) the passage of ten (10) days after Supplier’s receipt of the Order without written notice to Purchaser that Supplier does not accept. This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to this Order and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order, unless a separate overriding written contract has been entered into and signed by the parties. This Order expressly limits Supplier's acceptance to the terms of the Order. These Terms expressly exclude any of Supplier's terms and conditions of sale or any other document issued by Supplier in connection with this Order.
The Supplier shall deliver the Goods and/or Equipment and/or perform the Services at the delivery point (the “Delivery Location”), and on the date(s) specified in this Order (the "Delivery Date"). If no Delivery Date is specified, the Supplier shall deliver in full within a reasonable time of receipt of the Order. Timely delivery is of the essence. If the Supplier fails to deliver the Goods or Services in full, on the Delivery Date, the Purchaser may terminate the Order immediately and Supplier shall indemnify the Purchaser against any losses, damages, and reasonable costs and expenses attributable to the Supplier's failure to deliver.
The Supplier shall deliver the Goods or Equipment must be packaged in the manner specified by the Purchaser and shipped in the manner and by route and carrier designated by the Purchaser. If the Purchaser does notspecify the manner in which the Goods or Equipment must be packaged, Supplier shall package the Goods or Equipment so as to avoid any damage in transit.
The Purchaser reserves the right to inspect the Goods and/or Equipment and/or Services (whichever applicable) on or after the Delivery Date. The Purchaser, at its sole option, may reject all or any portion of the Goods and/or Equipment and/or Services (whichever applicable) if it determines the Goods and/or Equipment and/or Services (whichever applicable) are defective or nonconforming. If the Purchaser requires replacement of the Goods and/or Equipment and/or Services (whichever applicable), pursuant to Clause 5 herein, the Supplier shall promptly replace the nonconforming Goods and/or Equipment and/or Services (whichever applicable). If the Supplier fails to timely deliver replacement of the Goods and/or Equipment and/or Services (whichever applicable), the Purchaser may replace them with Goods and/or Equipment from a third party and charge the Supplier at the cost thereof and terminate this Order for cause pursuant to Clause 10. Any inspection or other action by the Purchaser under this Clause shall not affect the Supplier's obligations under this Order, and the Purchaser shall have the right to further inspection after the Supplier takes remedial action.
The rights and remedies under this Order are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. If Supplier is in breach of the warranties Page 2 of 5 Group Legal Controlled Doc - PLI Purchase Order GTC 2021 v.ingles set out in Clause 11, the Supplier will, at its sole cost, replace or repair the Goods or Equipment or re-perform Services to the Purchaser’s satisfaction.
The price of the Goods and/or Equipment and/or Services (whichever applicable) is the price stated on the face of this Order (the “Price”). Suppliershall invoice Purchaser for the Order within thirty (30) days of delivery. Unless otherwise stated in the Order, the Purchaser shall pay all properly invoiced amounts due to the Supplier within sixty (60) days after receipt of such invoice, except for any amounts disputed by Purchaser. The Parties shall seek to resolve all such disputes expeditiously and in good faith. The Supplier shall continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any otherright orremedy, the Purchaser reservesthe right to set off any amount owing to it by the Supplier against any amount payable by the Purchaser to the Supplier. Payment of an invoice is not evidence or admission that the Goods and/or Services meet the requirements of the Order.
If at any time Supplier generates any hazardous waste(s) on Purchaser’s property or site, the Supplier will immediately notify the Purchaser and the Supplier will comply with Purchaser’s policies and practices, and any applicable law, regarding management of hazardous wastes.
The Purchaser may, from time to time, initiate changes by issuing to the Supplier written notices (each, a “Change Order”) that alter, add to, or deduct from the Goods and/or Equipment and/or Services (whichever applicable), but that are otherwise subject to the GTC of this Order. The Supplier will promptly comply with the terms of any Change Order.
The Purchaser may terminate this Order, in whole or in part, for any reason upon thirty (30) days' prior written notice to the Supplier. In addition to any remedies provided herein, the Purchaser may terminate this Order with immediate effect, either before or after acceptance of Goods or Services, if the Supplier has breached any of the GTC herein. If the Supplier becomes insolvent, commences or has commenced by it or against its bankruptcy proceedings, receivership, reorganization or assignment for the benefit of creditors, then the Purchaser may terminate this Order. If the Purchaser terminates the Order for any reason, the Supplier's sole and exclusive remedy is payment for the Goods or Services received and accepted by the Purchaser prior to the termination.
Unless otherwise agreed, the Supplier warrants to the Purchaser that for a period of eighteen (18) monthsfrom the Delivery Date, all Goods, Services or Equipment furnished in connection with the Services will: (a) be new and free from any defects in workmanship, material and design; (b) conform to applicable specifications; (c) be fit for their intended purpose and operate asintended; (d) be free and clear of all liens, security interests or other encumbrances; and (e) not infringe or misappropriate any third party's intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Purchaser's discovery of the noncompliance. If the Purchaser gives the Supplier notice of noncompliance, the Supplier shall, at its own cost and expense, promptly replace or repair the nonconforming Goods, Services or Equipment.
The Supplier shall defend, indemnify, and hold harmless Purchaser and Purchaser's parent company, its subsidiaries, affiliates, successors or assignees and its respective directors, officers, shareholders, and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, penalty, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder (collectively, "Losses") arising out of or occurring in connection with the Supplier’s performance of its obligations or Supplier's negligence, willful misconduct or breach of the GTC of this Order or possession of the Goods which infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. The Supplier shall not enter into any settlement without Purchaser's or Indemnitee's prior written consent.
All non-public, confidential or proprietary information of the Purchaser, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by the Purchaser to the Supplier, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by the Purchaser in writing. Upon the Purchaser's request, the Supplier shall promptly return all documents and other materials received from the Purchaser. The Purchaser shall be entitled to injunctive relief for any violation of this Clause. This Clause shall not apply to information that is: (a) in the public domain; (b) rightfully and legally known to the Supplier at the time of disclosure; or (c) rightfully and legally obtained by the Supplier on a non-confidential basis from a third party.
Prior to commencement of performance, the Supplier will arrange any insurance required by applicable law, and maintain that insurance in effect throughout the duration of the Order execution. Satisfaction of the obligation to procure insurance and perform other actions in connection with this Article will not relieve the supplier of any other obligations or liabilities.
The Supplier warrants and represents to the Purchaser that it is in compliance with and shall remain in compliance during performance of this Order and ensure that its employees, agents, contractors and subcontractors (the “Personnel”) comply with all applicable laws, regulations and ordinances, including, without limitation, the US Foreign Corrupt Practices Act, the UK Bribery Act 2010 and any other laws in relation to Health, Safety & Environment (HSE) and Anti-Bribery & Corruption as applicable under the Governing Law. Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits required by law to carry out its obligations under the Page 3 of 5 Group Legal Controlled Doc - PLI Purchase Order GTC 2021 v.ingles Order. The Supplier shall comply with all export and import laws of all countries involved in the sale of Goods or Services under this Order. The Supplier assumes all responsibility for shipments of Goods or Servicesrequiring any government import clearance. If the Supplier fails to comply with the laws, orders, rules, ordinances and regulations and as a result Purchaser is fined, the Supplier agrees to pay the fine and costs incident thereto or reimburse Purchaser for payment. To the extent that the Supplier’s Personnel are required to enter onto Purchaser’s site or property, Suppliershall ensure that Personnel comply with the Purchaser’s health, safety and environmental policies and standards.
Unless specified otherwise on the face of the Order, the prices are inclusive of, and the Supplier shall be solely responsible for and pay, all federal, state, and local taxes, including, but not limited to, value added tax, goods and services tax, sales, use or consumption tax. No sales or use tax shall be added when a valid tax exemption is indicated on the face of this Order by the Purchaser.
Unless otherwise specified in the Order, risk of loss of the Goods, Equipment or Services remains with Supplier and title will not pass to the Purchaser until the Goods or Services are delivered to and accepted by the Purchaser at the Delivery Location.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party ("Force Majeure Event"). Force Majeure Eventsinclude, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. The Supplier's economic hardship or changes in market conditions are not considered Force Majeure Events. Supplier shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents the Supplier from performance for a continuous period of more than fifteen (15) business days, the Purchaser may terminate this Order immediately by giving written notice to the Supplier.
Supplier will not use Purchaser’s name or logo in publicity, advertising or similar activity except with the prior written consent of the Purchaser. Supplier will not disclose the existence of this Order or any of its respective terms to any third party without the prior written consent of the Purchaser.
Upon the Supplier receipt of amounts properly invoiced, the Supplier waives and releases all rights to, for itself and its subcontractors, and at its sole cost shall obtain prompt removal of any lien fixed against Purchaser, for Goods, Equipment or Services performed under this Order.
The Supplier is an independent contractor of the Purchaser. Nothing contained herein shall be construed as creating any agency, partnership, employment or fiduciary relationship. Neither party shall have authority to bind the other party in any manner whatsoever.
All matters arising out of or relating to this Order shall be governed by and construed in accordance with the laws of Delaware, USA, by arbitration, at the Chicago International Dispute Resolution Association (CIDRA) without regard to its conflict of law principles. Any dispute between the Parties as to the performance of this Order or the rights or liabilities of the Parties herein, or any matter arising out of the same or connected therewith, which cannot be settled amicably within thirty (30) days from the notice of dispute is sent to a Party by the other Party shall be referred to the dispute resolution method and rules as stated in Table A of the Annexure.
Any dispute between the Parties as to the performance of this Order or the rights or liabilities of the Parties herein, or any matter arising out of the same or connected therewith, which cannot be settled amicably within thirty (30) days from the notice of dispute is sent to a Party by the other Party shall be referred to the dispute resolution method and rules as stated in Table A of the Annexure.
All notices, consents, claims, demands, waivers and communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (return receipt requested, postage prepaid). A Notice is effective only upon receipt of the receiving party, and if the party giving the Notice has complied with the requirements of this Clause 22.
Any Supplier that may perform Services represents itself as qualified and able to perform. Supplier shall perform Services pursuant to the industry standard of care. Purchaser will furnish materials, equipment and machinery only if and to the extentset forth in the Order. The Supplier will report immediately to the Purchaser any event or circumstance which Supplier knows or reasonably suspects is, or results from, a violation of Purchaser’s policies or law set forth herein. Supplier will, at its sole cost and expense, repair or replace any real or personal property belonging to the Purchaser that the Supplier, its employees or agents may damage, destroy or remove while performing or result from performing this Order.
Provisions of this Order which by their nature should apply beyond any termination of this Order will remain in effect for the period expressed within this Clause but not longer than a period of two (2) years
If any term or provision of this Order is found invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Order or invalidate or render unenforceable such term in any other jurisdiction.
The Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the Purchaser’s prior written consent. Any purported assignment or delegation in violation of this Clause shall be null and void. No Page 4 of 5 Group Legal Controlled Doc - PLI Purchase Order GTC 2021 v.ingles assignment shall relieve the Supplier of any of its obligations hereunder. No modification, alteration or amendment of the Order shall be binding unless agreed to in writing and signed by the Purchaser. No waiver by any party of any of the provisions of the Ordershall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order by Purchaser shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or privilege hereunder preclude any other exercise of any additional right, remedy, or privilege.
Title, ownership and other rights to the Goods shall pass to and vest with the Purchaser on Delivery of the Goods to the Designated Location as indicated in the Order. Without prejudice to the terms of this clause, If the Goods and/or Equipment and/or Services (whichever applicable) includes items previously developed or copyrighted by the Supplier, Supplier hereby grants to the Purchaser an unrestricted, royalty-free, perpetual, irrevocable license to copy, use, disclose and sublicense such Goods for any lawful purpose. The Supplier shall have full responsibility for and all risk to the Goods and/or Equipment and/or Services until Delivery of the Goods and/or Equipment and/or Services to the Purchaser Designated Location as indicated in the Order.
Except to the extent of the Purchaser’s sole negligence, the Supplier shall indemnify hold harmless and defend the Purchaser, its officers, directors and employees from any and all claims, demands, litigation, expenses and liabilities (including costs and legal fees) of every nature arising under any statute or common law for death orinjury to persons or damage to tangible property or for infringement of patent, copyright, trademark or other proprietary rights arising out or incident to the supply of Goods and/or Equipment and/or perform the Services; the presence of Supplier's employees or agents on Purchaser’s premises; the Supplier's actions or omissions; or the Supplier's breach of any provision of this Agreement.
If the Supplier fails to deliver the Goods and/or Equipment and/or perform the Services as expressly set forth in this Order the Supplier agrees and shall pay the Purchaser by way of liquidated damages for any delay at zero point five percent (0.5%) calculated from the date of final delivery date. Such payment shall be construed as Liquidated Damages, and not as a penalty, and shall be limited in aggregate of ten per cent (10%) of the Order.
Where Supplier in the performance of the Order processes Personal Data, then Supplier agrees and warrants that Supplier shall: (a) comply with all privacy and data protection law and regulations applicable to its performance of the Order; (b) Process Personal Data only (i) on behalf of and for the benefit of Purchaser, (ii) in accordance with Purchaser’s instructions, and (iii) for the purposes authorized by this Order or otherwise by Purchaser, and (iv) in so far necessary for the performance of the Order and as permitted or required by law; (c) maintain the security, confidentiality, integrity and availability of the Personal Data; (d) implement and maintain appropriate technical, physical, organizational and administrative security measures, procedures, practices and other safeguards to protect the Personal Data against (i) anticipatable threats or hazards to its security and integrity; and (ii) loss, unauthorized access to, or acquisition or use of or unlawful processing of such Personal Data; and (e) promptly inform Purchaser of any actual or suspected security incident involving the Personal Data. To the extent that Supplier allows a subcontractor to process the Personal Data, Supplier shall ensure that it binds such subcontractor to obligations which provide a similar level of protection, but in no way less restrictive, as this Clause.
Supplier agrees and warrants that it will comply with all applicable international and national export control laws and regulations and it will not export or re-export, directly or indirectly, any information, goods, software and/or technology to any country for which the European Union or the United States of America (US) or any other country, at the time of export or re-export, requires an export license or other governmental approval, without first obtaining such license or approval. Supplier agreesto inform the Purchaser in writing whether or not the supplied information, goods, software and/or technology is US controlled and/or controlled under the export control laws of its own country, and if so, Supplier will inform the Purchaser about the extent of the restrictions (including but not limited to export control legal jurisdiction, export control classification numbers, export control licenses and/or commodity classification automatic tracking system as applicable). Supplier shall obtain all international and national export licenses or similar permits required under all applicable export control laws and regulations and shall provide Purchaser with all information required to enable the Purchaser and its customers to comply with such laws and regulations. Supplier agreesto indemnify and hold the Purchaser harmless from any claims, liabilities, penalties, forfeitures, and associated costs and expenses (including attorney’s fees), which the Purchaser may incur due to Supplier’s non-compliance with applicable laws, rules and regulations. Supplier agrees to notify the Purchaser promptly of Supplier’s receipt of any such notice of a violation of any export control related law, rule or regulation, which may affect the Purchaser.
The Supplier shall comply with all applicable Sanctions laws. The Supplier acknowledges and agrees that Purchaser shall be obliged to perform any obligation under this Order if this would not be compliant with, would be in violation of, inconsistent with, or would expose either party to punitive measures under any laws, regulations applicable to either party relating to Sanctions