General
Terms of Purchasing
The
Active Spring Company Ltd
The following general Terms of Purchasing shall apply to any delivery of
products, components or other goods and thereto possibly related services (hereinafter
called “Products”) to The Active Spring Company Ltd, hereinafter called “The
Buyer”, from any given supplier, hereinafter called “The Seller”.
These General Terms of Purchasing shall be mutually binding for the
Seller and the Buyer unless otherwise explicitly agreed. The Buyer shall not be
bound by conditions made by the Seller deviating from these General Terms of
Purchasing unless such conditions have been agreed in writing between the Buyer
and the Seller. Neither shall the Buyer be bound by conditions made by the
Seller even though the Buyer has not objected to such conditions. Acceptance of
Products by the Buyer cannot be interpreted as an implicit acceptance on the
part of the Buyer of a deviation from the terms of delivery made by the Seller.
“International rules on
uniform interpretation of trade terms 2000” (INCOTERMS 2000) from the
International Chamber of Commerce (ICC) shall apply to the terms and conditions
used in these general Terms of Purchasing.
Offers from the Seller shall
be free of charge and not binding upon the Buyer. The Seller shall deliver
Products in conformity with the order sent by the Buyer and accepted by the
Seller or in conformity with the offer sent by the Seller and accepted by the
Buyer. By confirming or executing orders, the Seller accepts the Buyer’s General
Terms of Purchasing.
Orders from the Buyer and
order confirmations from the Seller shall be in writing. Where there is no
order in writing and/or an order confirmation in writing, the Buyer shall have
the right to return goods received from the Seller. Return costs shall be paid
for by the Seller.
Delivery shall be effected at
the place and time specified in the order or in the order confirmation. Where
nothing is otherwise agreed in order or order confirmation delivery shall be
effected DDP at the destination specified by the Buyer. Where shipping
instructions specified by the Buyer are not observed, the Seller shall be
liable for any additional costs and any resulting loss.
All deliveries of Products
shall be accompanied by a consignment note stating: the Buyer’s code and order
numbers, date of order and the gross and net weights of the consignment. All
invoices and other correspondence shall be duly signed and state the Buyers
code and order numbers, date of order and the gross and net weights of the
consignment where relevant depending on the type of delivery. Invoices shall be
made in one copy unless any other form of collection of payment is agreed, such
as e.g. use of e-mail and the like. The packing shall clearly state the
recipient’s address and order reference.
In case of strikes, lockouts,
earthquakes or any other event beyond the control of the Buyer causing lack of
market potential for the Buyer’s Products, the Buyer reserves the right to
postpone the receipt of the delivery for up to 3 months or wholly or partially
to cancel the agreement made. As a result of such postponement or cancellation,
the Buyer shall not be under any obligation to pay the Seller any compensation
for any loss apart from irretrievable production costs paid by the Seller in
relation to the order before the notification of the Buyer’s postponement or
cancellation came to the knowledge of the Seller.
The time of delivery specified
by the buyer must be observed. Delayed delivery shall entitle the Buyer to
cancel the order and claim compensation, and in that case the Buyer shall not
be under any obligation to pay the Seller for work already done or goods partly
delivered on the order.
If the Seller finds that he
cannot deliver on time, or if delay on his part is to be considered probable,
the Seller shall without delay notify the Buyer thereof in writing and at the
same time state the reason for the delay and the time at which delivery is
expected to be effected. If the Seller does not make such a notification, he
shall, irrespective of the terms and conditions stated below, compensate the
Buyer for losses and costs incurred by the Buyer.
If the Seller does not
deliver the Products on time due to delayed notification, and if the Buyer does
not cancel the order, the Buyer shall be entitled to liquidated
damages as from the day upon which delivery should have been effected. The
liquidated damages amount to 2.0% of the total order sum per week or fraction
of a week of the delay. The liquidated damages cannot amount to more than 10%
of the total order sum. The liquidated damages shall fall due for payment on
demand in writing from the Buyer, but not before the Product has been delivered
in full or alternatively at the time at which the Buyer cancels the agreement
pursuant to the above. Part deliveries shall not exempt the Seller from
liability pursuant to this provision.
Too large quantities or
partial delivery will not be accepted and shall give the Buyer the same rights
as does delay. In case of too small quantities, the whole delivery shall be
considered delayed. Decisions in this respect are solely at the discretion of
the Buyer’s quality control department.
The Buyer shall pay within
one month plus 60 days from date of invoice. The credit granted by the Seller
shall appear from the invoice sent.
The Buyer will not accept any
conditional sale on the part of the Seller.
Drawings, rough designs,
technical information, prototypes, models and other information are always to
be considered confidential and those which the Buyer has handed over to the
Seller shall remain the property of the Buyer and shall be treated
confidentially. The Seller shall mark all such information with the Buyer’s
name.
Unless otherwise agreed in
writing, all special tools and special moulds produced for deliveries to the
Buyer (no matter who has paid for the tools or moulds) shall be maintained
without the expenses to the Buyer and be insured by the Seller to the full
replacement value, and such tools and moulds shall only be used for deliveries
to the Buyer. If the Buyer shall wholly or partially pay costs for the
production of tools, moulds or models such costs shall not be paid until the
Buyer has approved samples thereof. Tools, moulds or models wholly or partly
paid for by the Buyer shall be the property of the Buyer. The Seller shall mark
any such equipment with the Buyer’s name.
The above information, tools,
moulds and models must not, without the consent of the Buyer, be used for
purposes other than those of the Buyer and that is why they must not, without
the consent of the Buyer, be copied, reproduced, transferred to third parties
or be used for deliveries to anyone other than the Buyer. Upon request the
Seller shall return all material of any kind handed over by or produced for the
Buyer.
In case the Seller makes use
of sub-suppliers, the above information can, with the consent of the Buyer, be
handed over to such sub-suppliers. In such cases, the Seller shall ensure that
the sub-suppliers observe this point 7 in full.
If the Products wholly or
partially consist of software developed for the Buyer, the Buyer shall acquire
all rights to such software and to any accompanying source and object codes. If
the Products contain software not specifically developed for the Buyer, the
Buyer shall acquire a nonexclusive, royalty-free and geographically unlimited
licence for use of this software. The Seller shall be under an obligation to
transfer to the Buyer all necessary information and source code material etc.
which are necessary for the Buyer’s use of the intellectual property rights in
question. The Seller shall be under such obligation for at least 5 years from
the delivery of Products to the Buyer to be able to service and maintain all
material related to the intellectual property rights in question.
The Seller and any
sub-supplier shall allow the Buyer, their Customers and any relevant Authorities
access to their premises (wheresoever situated), quality
control records and any other relevant documents for the purposes of
traceability.
All such records shall be
retained by the Seller and any sub-supplier for a minimum period of 12 years.
Upon the Buyer’s demand, the
Seller shall on his own account defend the Buyer against any claim made against
the Buyer by third parties as a result of the Product’s alleged violation of
such third parties’ patents, copyrights or similar intellectual property
rights.
The Seller shall indemnify
the Buyer for any loss and all costs incurred by the Buyer as a result of the
violation or the alleged violation.
The Seller shall on behalf of
the Buyer and/or the Seller acquire the right to continuous use of the
Products, replacement or modification of the Products so that the Products no
longer violate the rights of third parties. If this is not possible, the Seller
shall credit the Buyer with the Products delivered and accept all returned
Products.
The Seller cannot without
reasonable notice and without prior written acceptance from the Buyer make
alterations to his Products for delivery to the Buyer even though this happens
without altering agreed technical specifications.
For 24 months from delivery,
the Seller shall guarantee that the Products delivered live up to agreed demands
and are not defective or faulty due to production, construction or material
defects deteriorating the Products’ suitability for normal or agreed use. Upon
demand from the Buyer and at the Buyer’s sole discretion, the Seller shall
credit, repair or deliver goods in replacement of defective Products without
any cost to the Buyer. Products found defective by the Buyer and not wanted
repaired by the Buyer shall be returned upon the Seller’s wish and at the
Seller’s expense.
If the Buyer has not wanted
replacement delivery of the defective Products, the Buyer can invoice the
Seller for equivalent amounts. Such invoice shall at the same time include the cost
of unloading and reloading, freight, customs duties (to the extent that these
are not refunded by the customs authorities), possible taxes, insurance and
clearance and all other possible losses suffered by the Buyer as a result of
defective Products.
Decisive for the Buyer’s
right of complaint is whether the defect has arisen within the guarantee period
of 24 months and not the time of the Buyer’s becoming aware of the defect – nor
the time of the Buyer’s complaint.
Moreover, the Seller
renounces the right to protest due to the delay of the complaint.
The Seller shall be
responsible for the fact that the Products delivered live up to quality and
security requirements and other valid rules not only in the country of
production but also in the country to which the Products are delivered or
expected to be used if the place of use has been specified by the Buyer. In the
case of disagreements between such standards, the standards used at the place
of delivery shall apply.
The Seller shall guarantee
that the Products delivered are not defective or faulty nor have properties
that can cause product liability damages. The Seller shall indemnify the Buyer
for any product liability and loss which can wholly or partially be ascribed to
damages or obvious risk of such a result of defective or faulty Products
delivered or properties in the same. The Seller shall be under an obligation to
be summoned by the court or court of arbitration hearing claims for
compensation raised against the Buyer due to damage claimed to have been caused
by the Products.
The Seller shall be under an
obligation to take out and maintain product liability insurance with a cover
considered usual considering the Seller’s business and turnover. Upon the
Buyer’s demand, the Seller shall produce evidence of such product liability.
If, as part of an agreement
with the Buyer, the Seller’s employees are present at the Buyer’s property, the
Seller and their staff shall make themselves familiar
with and observe the rules and procedures on the environment and safety laid
down by the Buyer. The Seller shall indemnify the Buyer for any damage to the
Buyer’s property and their staff arising as a result of the Seller’s employees’
negligent or wilful behaviour.
If one or more of the terms
and conditions in these General Terms of Purchasing are deemed invalid, illegal
or inoperable, none of the other terms and conditions’ validity, legality or
operability shall be affected or deteriorated.
Disputes arising under these
General Terms of Purchasing and
underlying agreement shall be settled pursuant to the law in the Buyer’s
country, however, always excluding CISG and provisions on the choice of law.
Disputes of any kind arising in connection with the delivery shall be settled
in the courts of the Buyer’s country. Disputes shall be heard at the Buyer’s
venue.
If the Buyer so requests,
disputes shall be finally settled by Arbitration. In that case, the procedure
shall be pursuant to the rules and regulations of Arbitration laid down by the
International Chamber of Commerce (ICC). Meetings shall be held at a place
specified by the Buyer and the language of the proceedings shall be in English
unless otherwise agreed between the parties.