1. Contract These (“Conditions”) form part of the Purchase Order (“PO”) affixed hereto. The PO (including the Conditions (“including” shall mean including without limitation throughout this document)) and any referenced specifications and other documents relating to the transaction described in the PO constitute the entire agreement between APMM, the Affiliate or the Associated Company designated to be a buyer (“Buyer”) in the PO and Supplier, whose details are set out in the PO (together the “Parties”), and replace and supersede all other prior oral and written agreements between the Parties in respect of said transaction. Supplier acknowledges that it has received these Conditions and is aware of all provisions herein. By confirming the PO or by supplying any goods or services (collectively the “Item(s)”) set forth in the PO or invoicing the same Supplier expressly agrees that the Conditions govern the transaction, including the indemnities set forth in Clause 13, unless expressly modified by the PO or otherwise in writing by the Parties. Supplier’s standard delivery terms attached on order confirmation or the like shall be overruled by these Conditions.
2. Definitions In the PO: “Affiliate(s)” means in relation to a party, any entity Controlled, directly or indirectly, by that party, any entity that Controls, directly or indirectly, that party or any entity under the same, direct or indirect, Control as that party; “Associated Company” means any entity not Controlled but partly owned, or managed under contract at any time by APMM or any of its Affiliates; Buyer’s “Client” means the company, if any, for which Buyer at any time is performing services using the Items covered by the PO, its co-venturers, its contractors and subcontractors (of any tier) and its and their respective Personnel; “Claims” means all claims, actions, demands, losses, damages, liabilities, awards, costs and expenses including legal expenses, and charges, fines and/or penalties levied or imposed by any person or body having jurisdiction and power to do so; “Control(s)(led)” means the power of any party to secure that the affairs of an undertaking are conducted in accordance with the wishes of that party: (i) by means of the holding of shares or the possession of voting power in, or in relation to, such undertaking; or (ii) by virtue of any power conferred by the law, constitutional documents, agreements or arrangements regulating or relating to such undertaking, and Controls and Controlled shall be construed accordingly; “Buyer’s Group” means Buyer, its Affiliates and Clients and their individual Personnel; “Supplier’s Group” means Supplier, its contractors and subcontractors and its and their respective Affiliates and its and their Personnel, individual personnel; “Personnel” means directors/officers/employees/agency staff/agents/invitees/other personnel retained by or engaged in business for the benefit of a party; and “Legislation” means laws/regulations/rules/ guidelines.
3. Price, invoicing, payment and taxes The price of the Items covered by the PO shall be the price set forth for each of such Items in the PO or in a price list attached to these Conditions. No payments whatsoever in addition to the price stated or referred to in the PO shall be due from Buyer to Supplier. Following Delivery/performance, Supplier shall invoice the Items according to the PO (in duplicates in English) and include all necessary references to the specific Items and Buyer’s references including Buyer’s name and department, PO number, place of Delivery, name of consignee if relevant, quantity and description of Items (in the same sequence as in the PO), and specification of any taxes or charges on the sale. Payment shall be due and payable current month + 90 days from receipt of a correct invoice and Delivery of the Items. Buyer may withhold from any payment any amount genuinely in dispute and any sums due to Buyer from Supplier hereunder. Buyer shall pay interest on all overdue sums at the Bank of England Base Rate (at the time payment is due) plus 2%. Prices quoted for Items supplied under the PO shall be exclusive of VAT and/or GST but include all other taxes, duties and charges that are levied upon the payments made by Buyer to Supplier. Supplier shall be responsible for reporting and promptly settling of all such taxes and charges and all costs assessed in connection therewith and will indemnify and hold harmless Buyer against the same, except for VAT and/or GST payable by Buyer.
4. Delivery of Items Supplier shall deliver (“Deliver(y)”) a) goods DDU (Incoterms 2000) at the delivery point and on the date stated in the PO, together with all necessary customs invoices and delivery notes (issued in duplicates in English), advice notes, bills of lading and other documents ordinarily accompanying such goods; b) services at the delivery point and on the date stated in the PO. If performing services on Buyer’s vessel, Buyer shall provide necessary transport from land to vessel and food and lodging whilst aboard for Supplier’s employees and Supplier shall co-operate with other parties working onboard Buyer’s vessel. Without prejudice to Buyer’s rights and remedies herein, title and risk of the goods pass to Buyer on Delivery.
5. Acceptance/rejection and failure to deliver Items Supplier shall immediately notify Buyer in writing of any anticipated delay or deviation involving the Items. Any failure or delay in Delivery, including partial delivery (unless otherwise agreed in writing), shall be a material breach of Supplier’s duties. Buyer may return any goods at Supplier’s risk and expense and reject any services not complying with the PO and these Conditions.
6. Packing and Marking All delivered (including each successive deliveries) goods, shall be packed in non-wooden packaging, presented with a “Non-wooden Packaging Declaration”, or alternatively approved wooden packaging, i.e. bark-free and heat- or fume-treated, carrying an official certificate from the exporting government approving the above treatment. In case above requirements are not complied with, Buyer has the right to reject the delivery or re-package the goods at Suppliers expense. All goods shall be delivered in a secure and appropriate packing suitable for domestic or overseas transport, with due consideration to the generic nature and composition of the goods supplied. Each PO must be packed separately to ensure proper registration and receipt. Supplier is allowed to pack several POs on the same pallet, as long as each PO is packed in its own package. Pallets containing packages for several POs shall be labelled with an A4 sized sign “Mixed Pallet” or Split Pallet”. Supplier must pack multiple packages for a single PO on the same pallet. Supplier may not split an PO with multiple packages over several pallets, unless the PO is so large that it fills one pallet and needs to be packed on a second pallet. Supplier shall sign the A.P. Moller – Maersk Security Declaration concerning handling and packing of goods upon request from Buyer. Each delivery shall be clearly marked with Buyer's name and address, Buyer’s PO number, place of delivery, consignee, and “Ship’s spares in transit” on the exterior of the package(s) and be included in the documentation.
7. Hazardous substances If Supplier delivers hazardous substances, Supplier shall: register with The Danish Maritime Occupational Health Service (“Seahealth”) to get access to the Maritime Chemical Database (MCD). Buyer will, at Supplier’s request, inform Supplier of the products in questions which should be updated in the MCD. According to Danish maritime legislation a Safety Data Sheet (“SDS”) shall be delivered by Supplier to the Buyer. Supplier shall deliver a SDS in PDF file format to email@example.com written in English prior to each first time delivery, and subsequently after each revision. The product will then be updated in the MCD and in the Buyer’s product list by Seahealth. Supplier is expected to pay for all costs in connection with preparation of the SDS. All hazardous substances delivered shall be accompanied by easily understandable instructions (SDS and Product Data Sheet) in English. The SDS shall comply with current EU legislation. Supplier shall maintain the data in the SDS continuously and once a year, according to mutual agreement, Supplier shall confirm the validity of the SDS. This shall be communicated to firstname.lastname@example.org and email@example.com. Supplier shall stay up-to-date with the development and ensure that hazardous ingredients are replaced by less hazardous ones where technically possible, to comply with the goals to substitute hazardous substances onboard ships. Supplier undertakes not to utilize hazardous ingredients if they can be substituted by a substance which is not hazardous, less hazardous or less noxious than the one being used.
8. Restricted articles (IMO/IATA/ADR/RID Cargo) Supplier shall send all Restricted Articles and Hazardous Substances in accordance with IATA (airfreight) requirements. This is required even if Supplier is sending goods by other means of transport (i.e. road or sea). Supplier shall provide full DGDS paperwork and package goods appropriately in boxes with the UN number and other appropriate labels. The paperwork should be attached to the outside of the package. Supplier shall pack Restricted Articles and Hazardous Substances on the outside edges or top of pallet/collis. This to ensure that Buyer’s representative upon receipt can immediately identify, properly handle and store these substances.
9. HSSE and ethics Supplier’s Group is responsible for the safe delivery of the Items and shall give the highest priority to safety in order to avoid injury to any person and/or damage to any property. Supplier must strive for continuous improvement of health, safety, security and environmental performance and ensure that management of health, safety, security and environment is an integral and visible part of Supplier’s work planning and execution processes. Supplier shall monitor and evaluate its safety performance, as a minimum based on fatalities and number of Lost Time Injuries (LTIs), and take such actions as are required or appropriate to rectify and improve its overall safety performance and establish and maintain a casual/emergency response plan to deal with unforeseen events, such as but not limited to fire and explosion, and carry out periodical drills with the involvement of relevant employees, servants, agents and subcontractors. Supplier shall ensure that both Supplier and its subcontractors shall comply with any applicable local or international health, safety and environmental Legislation and any other requirements referred to by Buyer as may be varied or supplemented from time to time. Supplier shall ensure that its hazardous waste (including such waste that Supplier is required to handle) is being collected, stored and disposed or recycled in an environmentally sound manner and shall further establish programs to monitor green house gas emissions and waste amounts from its facility. Supplier undertakes to show consideration for the environment in its business, e.g. to use its best endeavour to ensure the usage of recyclable materials in producing and packing the goods, and that all materials used in its production shall be of the environmental viable kind ensuring that the least impact on the environment when selecting materials for the Items from subsuppliers. Supplier shall constantly strive to avoid the use of scarce resources in all areas of their business including, but not limited to, administration, production, packaging, transport, etc. This includes implementing procedures to ensure that wood from high conservation forests is avoided whenever possible. Supplier shall not directly/indirectly give anything of value to public employees/officials (including in government controlled companies), to obtain any business advantage regarding this Contract.
10. Compliance with Legislation Supplier shall comply with all Legislation applicable to delivery of the Items, including United States and European Union (“U.S. or EU”) regulations and controls of export and re-export of goods, software and technology (including as in regards to any embargoed countries). To the extent any Items or parts of Items (including software and technology) supplied by Supplier to Buyer are subject to economic sanctions or export control laws and regulations of the U.S. or EU, Supplier shall, upon Buyer’s placement of a request for quotation or a PO, whichever is the earliest, or in case of defective Items at the time of re-Delivery, without delay provide in a form satisfactory to Buyer a certification of the specific export classification of each of the Items and the country of origin. Supplier shall provide the certification of specific US export classification of relevant items, including ECCN numbers. If Items to be supplied by Supplier under a PO are subject to U.S. or EU export control Legislation, Supplier must include in its certification a complete list of the countries where the Items may not be exported or re-exported without prior specific export/re-export licensing from relevant government authorities. Supplier also affirms that the Items comply with 1) EU directives, in effect at the time of Delivery or in case of defective Items at time of re-Delivery. Supplier shall furnish Buyer with a declaration of conformity with the relevant EU directives and documentation shall be delivered to Buyer latest at the time of Delivery/re-Delivery, 2) where applicable, the requirements of the Marine Equipment Directive 96/98/EC (“Directive”) as amended and be marked as such. Items conforming to any of the Mutual Recognition Agreements associated with the Directive will be likewise accepted. All costs incurred in complying with this Clause 10 shall be for the sole account of Supplier and Supplier shall indemnify and hold Buyer harmless from all fines, penalties and all associated expenses arising out of or resulting from the violation by Supplier of any of its obligations in this Clause 10. Buyer shall have the right, to appoint at its own cost, charge and expense a firm of chartered accountants to audit and verify Supplier’s compliance with this Clause 10.
11. Warranties and undertakings Supplier warrants and undertakes that: (a) the goods shall be new, of good quality and workmanship, free from defects and fit for the intended purposes set forth in the PO, including complying with any specifications; (b) it shall perform the services with all due care and diligence, in accordance with the PO and good international industry practices; and (c) all Items shall comply with the foregoing for 24 months from the goods are put into use or from Delivery of the service. However the total warranty period shall not exceed 36 months from Delivery/performance.
12. Remedies (a) Supplier’s sole remedies for Buyer’s material breach of its duties herein shall be: (i) to refuse subsequent supplies/performance of goods/services unless such material breach is the subject of a dispute between the Parties; or (ii) termination of the PO, without prejudice to its right to claim damages. (b) Without prejudice to Buyer’s remedies for Supplier’s breach of any other terms of the PO, time is of the essence in the Supplier’s delivery of the Items and failure by Supplier to deliver at the date stated in a PO, Buyer shall be entitled to either liquidated damages of 2 % of the total value of the PO per commenced week of delay, effective from the first calendar day following the Delivery date; or damages for any loss incurred, for which loss Supplier shall indemnify and hold the Buyer harmless; or the right to demand delivery via the fastest mean of transportation at the cost of the Supplier (airfreight included). In addition Buyer reserves the right to cancel any undelivered Items in case of a delay in delivery exceeding 30 days in duration, without any cost to Buyer. c) Without prejudice to Buyer’s remedies for Supplier’s breach of any other terms of the PO, Buyer’s sole remedies for Supplier’s breach of Clause 11 shall be Supplier’s replacement, or repair at no additional cost of defective goods, or re-performance of defective services, and if Supplier has not begun such remedies within 48 hours of notice thereof by Buyer, or having begun, has not cured such default or is not making continuous and substantial progress towards cure within 5 working days thereafter, Buyer may itself or through a third party effect such repair, or replacement, or re-performance at Supplier’s expense, Buyer may in addition terminate the PO without notice at the end of such 5-day period. Such termination is without prejudice to Buyer’s right to claim damages.
13. Indemnities Supplier shall defend, indemnify and hold harmless, and keep indemnified and held harmless, Buyer’s Group from and against any and all costs, claims, liabilities, damages, charges and expenses of whatsoever nature (including legal costs) arising out of any claim made by any third party arising from, relating to or in connection with the PO. Notwithstanding the provisions of this Clause 13, Supplier shall not be liable in respect of any matter which results from the willful misconduct, fraud or dishonesty of Buyer.
14. Insurance Supplier shall have and maintain insurance coverage in accordance with good international industry practices, including Commercial General Liability Insurance including Contractual liability, All Risks cover for all Items provided by Supplier, Comprehensive Automobile Liability Insurance, and Workmen’s Compensation/Employers’ Liability, at its expense with a reputable insurance company, properly safeguarding Supplier against its liability hereunder. Supplier shall furnish to Buyer insurance certificates confirming such insurance, that the premiums have been paid, and specifying the names of the insurers, policy numbers and expiration dates. All such insurance policies shall provide that, in case of cancellation, Buyer shall receive written notice thereof at least 14 days before the effective date of cancellation.
15. Patent protection Supplier shall defend, indemnify and hold harmless Buyer from and against all Claims resulting from any proceeding brought against a member of Buyer’s Group based on a claim that any Item or their use in the manner intended by Buyer, infringe any patent or other intellectual property right. Supplier shall pay any judgment awarded as a result of any such proceeding against such member of Buyer’s Group. If the use of any such Item as intended by Buyer is prohibited, Supplier shall, at its own expense, either obtain for such member of Buyer’s Group the right to continue using such Item, replace it with a non-infringing item, modify it so it becomes non-infringing, or remove such Item and refund the purchase price and all documented costs arising in relation hereto. Any attempt by the Supplier or its Affiliates to obtain and register any patent or other intellectual property, which does not belong to the Supplier – registered or not – shall be deemed as a fundamental breach of contract by the Supplier unless otherwise agreed to between the Parties and shall result in consequential damages payable by Supplier or its Affiliates to the Buyer.
16. Force majeure A Party shall not be responsible for any failure to fulfill any term or condition of the PO caused by an unforeseen, extraordinary and serious event (but not including economic hardship or adverse weather) not within its control and not caused by its default or error. If such event continues for 90 days, Buyer may terminate the PO.
17. Confidentiality All technical, economic or other information, whether in written, oral or visual form, disclosed by a Party (“Disclosing Party”) to another Party (“Receiving Party”) in relation to the PO (“Confidential Information”) shall remain or become property of the Disclosing Party. Such Confidential Information shall not be given or disclosed to any third party without Disclosing Party’s prior written consent and Receiving Party shall only use the Confidential Information for the purposes of the PO. Receiving Party shall limit internal dissemination of Confidential Information to only those individuals whose duties justify their need to know such information. It is not permitted, without prior written consent from Buyer, to use Buyer’s name or any commercial relation with Buyer, or a company associated with Buyer for the purpose of advertising or as a reference.
18. Assignment, amendment or cancellation Buyer may freely assign the PO, including its rights and obligations therein, to an Affiliate or its Client. The PO is not assignable by Supplier without the prior written consent of Buyer. No amendment to the PO shall be binding unless agreed to in writing by the Parties. The PO may be amended without the consent of any third party or any member of either Supplier’s or Buyer’s Group even if the right of such third party or member of either Buyer’s or Supplier’s Group to enforce a term of the PO may be varied or extinguished. Buyer may cancel the PO for any reason whatsoever on 30 days’ written notice to Supplier, and shall compensate Supplier’s documented costs arising therefore that could not reasonably be avoided.
19. Law, jurisdiction and disputes The laws of England shall exclusively govern the PO, and any non-contractual obligations arising out of or in connection with it, and all relationships and related transactions contemplated between the Parties, and all disputes arising from or related to the same, including the PO, to the exclusion of CISG, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause, and shall be the exclusive venue for all dispute resolution. Said law governs all aspects of Items delivered hereunder in respect of the form and time for inspection and notification thereof, and any refusal of Items.
20. General Failure of either Party to enforce any of the part of the PO shall not prevent a subsequent enforcement of such part or be deemed a waiver of any subsequent breach. Should any provision of the PO, or portion thereof, be unenforceable or in conflict with governing laws, the validity of the remaining provisions shall not be affected by such unenforceability, and the PO shall be construed as if such provisions were not contained herein. In entering into this PO Supplier is acting as an independent contractor and not as an agent, partner or employee of Buyer.