GENERAL TERMS AND CONDITIONS OF CONTRACT
These general terms of purchase (hereinafter “General Terms”) shall apply to any and all purchase order issued by the LDPL MIDDLE EAST SHIPPING LLC entity (hereinafter “CLIENT”), hereinafter called the “Order”. Any clause not present in (or contradictory to) the General Terms or the Order shall need to be specifically approved in writing by CLIENT. SUPPLIER’s acknowledgement of receipt (of its General Conditions of Sale or any other document) could not be opposed to CLIENT with respect to such clauses. Only special terms stipulated in the Order (hereinafter “Special Terms”) can modify the General Terms. Such Special Terms shall apply only to the Order concerned, and SUPPLIER shall not be entitled to avail himself thereof in connection with other orders.
Should a contradiction or discrepancy exist between the General Terms and the Special Terms, the latter shall prevail. Tenders shall be submitted without charge. Any deviations from the enquiry shall be expressly stated. CLIENT has the right to accept any of the tenders or reject them all. Only written orders are binding.
Article I. DEFINITION OF SUPPLY
- Supply, and related services if any (“Supply”),shall be defined in the Order and/or in the technical documents appended thereto.
- Such Supply and related services shall be delivered or carried out complete and in conformity with the Order and associated technical documents, good industry practices and applicable regulations.
Article II. FORMATION OF CONTRACT
- SUPPLIER shall acknowledge receipt of the Order within eight (8) days of mailing thereof, failing which CLIENT may deem at his convenience the Order null and void or the Order will be deemed accepted by the SUPPLIER. SUPPLIER shall certify acceptance of the Order in writing.
- The SUPPLIER shall officially sign, with date and stamp, on the box provided for in the Order and send a copy back to the CLIENT, as proof of acknowledgement and acceptance of the Oder.
- The acknowledgement of the Order by the SUPPLIER implies that he accepts all the printed General and Special Terms, 2.04 This contract shall be governed by, and interpreted under, the French law. Any dispute arising in the execution of this contract shall be settled by the sole Tribunal de Commerce de Paris, even in case of jurisdiction attributing cause, claim for warranty of defendant’s plurality.
Article III. INTELLECTUAL PROPERTY RIGHTS
- Samples, models, calibers, drawings, etc. handed over or executed against CLIENT’s drawings or indications by the SUPPLIER, remain CLIENT’s property, even if executed at no charges. They shall be handed back in good condition after execution of In case of missing or damaged parts, these will be invoiced back to the SUPPLIER.
- SUPPLIER commits to keep all discretion about execution of his service. Particularly, it is strictly forbidden to reproduce drawings and/or technical documents placed at SUPPLIER’s care without SUPPLIER’s prior formal written agreement, as well as delivering to third parties goods manufactured against SUPPLIER’s drawings or models.
- SUPPLIER agrees to protect, defend, indemnify and hold CLIENT and its co-ventures, free and harmless, from and against, loss, liability, damage, claim or costs (including legal costs and expenses) resulting from the infringement of any patent rights, registered design, copyright, trademark or name or other protected rights relating to any method material or equipment used or provided by SUPPLIER in its performance of the Order. Further, at CLIENT’s option, SUPPLIER shall defend at its own expense any suit which if successful would entitle CLIENT to invoke such indemnity.
- In case of alleged claim or final judgment forbidding the use of all or part of the Supply on account of infringement of intellectual property rights, SUPPLIER shall, at its own cost and discretion, either obtain on behalf of CLIENT the right to continue to use said Supply or, if the above proves difficult to obtain, at the CLIENT’s option (i) reimburse CLIENT the amount of the said Supply or (ii) find any suitable alternative so as to allow CLIENT to use SUPPLY with all functionalities.
Article IV. SUB-CONTRACTED WORKS
- Under no circumstances ORDER can be sub-contracted to third parties without any prior formal acceptation by CLIENT. Even with this acceptance, the SUPPLIER remains the sole responsible of the complete execution within the contracted period.
- All goods handed to SUPPLIER remains SUPPLIER’s property. In case of loss, deterioration or improper machining, the good’s gross value will be claimed against the maker. Goods will have to be redelivered in full within the contracted forms and quatities.
- Goods or equipment handed over to sub-contractors will have to be insured by him against theft and fire.
Article V. EXECUTION AND/OR DELIVERY DELAY
- Time is of the essence of the Execution and/or delivery time limits stipulated in the Order are binding.
- In case of late delivery of the SUPPLY, SUPPLIER shall be liable to CLIENT for liquidated damages amounting to 1% of the value of the Order per late day, after an initial grace period of 72 hours and within a limit of 10% of the value of the Oder.
- These liquidated damages are solely related to delay but shall not relieve SUPPLIER from its responsibilities and shall in no case be considered as a penalty or a lump sum compensation for the damage suffered by CLIENT and shall apply irrespective of any other legal or contractual recourse, including but not limited to termination and/or claim for damages.
- CLIENT may at any time and at its sole discretion, order suspension of the performance of the Order, without any further obligation for the Parties than, for CLIENT, to operate outstanding payments for that part of the Order already performed and, for SUPPLIER, to properly protect and secure the Supply. If suspension results from default on the part of SUPPLIER, any additional costs reasonably incurred by CLIENT as a result shall be recoverable by CLIENT from SUPPLIER. If suspension is not caused by default from the SUPPLIER, time schedule shall be extended according to the suspension period duration. In this latter case, should such suspension last more than 30 days, SUPPLIER is authorized to terminate the Order, without any other right and obligation than to deliver the Supply that was ready before suspension and to be paid for such Supply.
Article VI. PRICE
- Unless otherwise indicated in the Order, prices stipulated therein are considered firm and not subject to escalation or revisions.
- Prices are definitive and non-revisable for quantities and qualities stipulated by the purchase However, they can be stipulated revisable whether:
- A price regulation,
- A price revision frame pre-agreed between parties,
- No price revision will be accepted unless pre-agreed by our purchasing department,
- Prices are established without A V.A.T. exemption statement is stated on the page.
- However this does not preclude any end of year discount or rebate as agreed between CLIENT and SUPPLIER.
Article VII. GOODS IDENTIFICATION
Each part or serial of identical parts should be individually packaged. A label sticker outside the individual conditioning package shall mention: full Part designation, reference number, serial number, quantity, any other information related to the part.
In case of dangerous parts, an Matetial Safety Data Sheet (“MSDS”) should also be included in the individual packaging and necessarily must be attached Dangerous Goods Declaration (“DGD”) .
Copy of these MSDS and DGD must be attached to the package and sent by email to the purchaser in charge when goods leave the factory.
Article VIII. GOODS CONDITIONING
- Conditioning shall be sufficient to prevent any possible damage to the goods during transportation, handling and storage.
- Except otherwise specified, all conditioning should be designed for air and sea transport even if the original delivery addre ss do not directly imply such type of Moreover, each pallet wood must be fumigated.
- The following information should be clearly displayed outside the transport packaging:
- Name of the vessel
- Purchase order number
Article IX. LOCAL LAWS
SUPPLIER shall comply with, and shall ensure that its sub-contractors and sub-suppliers and personnel shall comply with, all laws, rules and regulations applicable in the country where the Order is to be performed or the Supply delivered.
SUPPLIER shall indemnify and hold harmless, the CLIENT and any other member of its group for any consequence of failure to comply with this obligation.
Article X. DELIVERY
- Unless stipulated elsewhere in the contract, goods shall be delivered free of transportation and packaging costs to the indicated address.
- Each delivery shall be completed by a referenced delivery note in five (5) originals: one (1) copy of the delivery note to be sent to CLIENT purchasing department by email, four, (4) originals are to be kept with the goods, in an envelope externally stapled on the packaging, one (1) original to be kept inside the package.
- Such documents shall stipulate the purchase order number, the vessel’s name, and goods designation, customs code (Certificate Original, TARIC or SH 2012) delivered quantities with net and gross weights. If serial number is indicated on any part, this should also be indicated in the delivery note..
- Whatever transportation means is used, SUPPLIER remains responsible of the goods condition until their acceptation by SUPPLIER.
- Inventory of Hazardous Materials as per IMO Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships dated 15th May 2009,: SUPPLIER shall provide Material Declaration (MD) and Suppliers Declarations of Conformity (“SDoC”) for Material Declaration Management (refer to IMO Resolution 269(68)).
- In case where the parts delivered are considered as dangerous cargo, the UN and IATA number should also be indicated on the delivery note. In case where the dangerous cargo declaration is omitted, SUPPLIER will support all the consequences which might arise from that omission.
Note: The documents accompanying the goods shallbe:
- Shipping Invoice or customs invoice
- Packing list
- MSDS + DGD
- Air Way Bill (“AWB”), Bill of Lading or monitoring document
Article XI. QUALITATIVE ACCEPTATION
- SUPPLIER shall perform the Order with a high level of quality, health, safety and environmental respect.
- Accompanying documents must be enclosed in the packaging for:
- Delivery note with full details
- Certificate of conformity, delivered by the competent
- SUPPLIER shall perform at its expense and risk all procedures, tests, trials and inspections stipulated in the Order and/or conformity with the technical specifications and/or the industry best practices and/or, as the case may be, with the intended use of the SUPPLY whichever is the more stringent. A record thereof shall be kept available to CLIENT.
- Acceptance shall take effect after delivery and not before CLIENT has been given the opportunity of satisfying itself that the Supply is in accordance to the above Non-acceptance shall be at SUPPLIER’s expense.
Article XII. INVOICING
- One (1) original invoice with three (3) copies, bearing the purchase order’s date and number, vessel’s name and delivery note number shall be directed to the invoicing address shown on the purchase order.
- There shall be as many invoices as deliveries.
- Invoices shall be received within ten (10) days from goods delivery.
- Under no circumstances shall several purchase orders be invoiced on the same document.
- Any non-conforming invoice shall be treated as null and void, and shall be rejected.
- Unless otherwise stipulated in the Order:
- No down payment shall be made at the time of ordering.
- Any invoice issued in compliance with the terms herein shall be paid by CLIENT within sixty (60) days net from date of inovice.
Article XIII. TAXES
Prices shall be exclusive of any VAT or similar tax(es) but inclusive of any withholding tax. Except VAT, SUPPLIER shall remain liable for the payment of any other tax.
All payments shall be net of any applicable withholding taxes and all applicable withholding taxes shall be remitted timely to relevant tax authorities with receipts and other supporting documentation provided to SUPPLIER.
Article XIV. CONFIDENTIALITY
- SUPPLIER undertakes to and undertakes to cause its staff and/or sub-suppliers, to treat as confidential and not to disclose or make available to any third party whomsoever, directly or indirectly, any information or date relating to CLIENT’s business obtained in connection with the execution of the Order.
- Any such information or data shall only be disclosed to and used by those persons within the SUPPLIER’s organization (including its subcontractors and/or sub-suppliers) who need to know them and solely for the purpose specified in the Order.
- SUPPLIER is not authorized to mention CLIENT’s name in any publication, press release or any other kind of private of public communication without prior written authorization of CLIENT.
Article XV. CONTINUED SPARE PARTS AVAILABILITY
SUPPLIER commits itself to keep the spare parts related to the Supply, available during at least five (5) years after delivery. SUPPLIER shall, with at least a two (2) years prior written notice, inform CLIENT of any obsolescence or production stopping of the said spare parts.
At the end of the warranty period, SUPPLIER shall provide CLIENT with, as the case maybe, relevant authorizations, plans and/or any information that would allow CLIENT to repair the Supply or to have them repaired.
Article XVI. TERMINATION OF ORDERS
- In the event of a breach by SUPPLIER of any term of the Order or of this General Terms or unjustified abandonment or interruption of the Order, CLIENT shall have the right, after prior written notice remained without effect after 48 hours, to terminate the Order.
- In case of termination of the Order according to above article, SUPPLIER shall hold harmless, bear and reimburse CLIENT for all damages and costs suffered by CLIENT due to SUPPLIER’s default or the termination or as a consequence thereof. This shall include the cost of having the Supply provided by a third party.
Article XVII. EARLY TERMINATION
- CLIENT reserves the right to notify at any time in writing, termination of part of or all the Order, at its sole discretion. Such early termination shall take immediate effect, except in case of any other deadline specified by CLIENT.
- On receipt of termination notice, SUPPLIER shall immediately cease execution of the Order, in particular with respect to Supply and subcontracting. CLIENT shall pay SUPPLIER for all Supplies delivered or ready for delivery before the effective date of termination. The supplies so paid or to be paid shall become the property of CLIENT. CLIENT shall also fairly determine and pay an indemnity for the by-products specifically purchased for the Order. No other indemnity or compensation shall be accrued to SUPPLIER.
- SUPPLIER shall ensure that all subcontracting or supply agreements it may sign contain a similar clause.
Article XVIII. LIABILITY – INSURANCE
- SUPPLIER is liable for any damage caused to the Supply up to delivery.
- Each Party (hereinafter the “Indemnifying Party”) shall be responsible for and shall save, fully indemnify, defend and hold harmless the other Party from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by the negligence, or breach of duty (whether statutory or otherwise) of the Indemnifying Party. For the purposes of this clause third party (“Third Party”) shall mean any party which is not a Party or an affiliate or parent company of a Party.
- SUPPLIER shall be responsible for and shall save, fully indemnify, defend and hold harmless CLIENT from and against all losses and/or damages sustained by CLIENT and/or its installations, equipment, personnel and agents attributable to the execution of the Order and/or the use of the ordered Supply and/or related services.
- In the event of total or partial loss of the Supply while under the responsibility of SUPPLIER, CLIENT shall have the option of:
- cancel the Order and reclaiming sums already paid, or
- permit SUPPLIER to complete the Order at its own cost and risk.
Article XIX. WARRANTY
- Without prejudice to the warranties prescribed by law and/or customary in SUPPLIER’s business, such as but not limited to the warranty against latent defects, which are binding on SUPPLIER during the Contract Warranty Period as well as after its expiration, SUPPLIER shall warrant Supplies are free from any defect of design, manufacture or assembly, for 12 months after acceptance of the Supply or for such other period set forth in the Order. The obligation of SUPPLIER shall be total and shall on no account be waived.
- Under the terms of this warranty, SUPPLIER shall be bound to repair or replace, at its sole cost, any defective Supply. All transportation costs shall be for the SUPPLIER. Such repair and/or replacement shall be made within the time schedule stipulated by CLIENT or stipulated in the Special Terms and/or the Order.
- If the circumstances so require or should SUPPLIER refuse or fail to comply with provisions of this article, CLIENT shall be entitled to take all appropriate measures to perform or have performed the necessary repair and/or replacement, and have SUPPLIER bear the costs thereof without prejudice to damages and without affecting the warranty that SUPPLIER is required to provide.
- In case SUPPLIER has to repair or replace in CLIENT’s premises or vessels, SUPPLIER shall arrange for, bear the responsibility of arranging for, take full insurance coverage and bear the costs of such on-site or onboard intervention.
Article XX. FORCE MAJEURE
- The term Force Majeure (“Force Majeure”) shall mean any circumstance which is unforeseeable, sudden, insurmountable and outside the control of the Parties and not caused by the action, omission or negligence of the Party or its sub-suppliers claiming suspension, including without limitation natural disasters, embargoes, epidemic, flood, explosion, fire, lightning, earthquake, war, riot, military action, insurrection, terrorist or anti-Government acts, civil disturbance, strike (except the strike of SUPPLIER’s personnel, subcontractors and sub-suppliers), Government order, decision or administrative ruling, Court order, Government inaction, but excluding lack of finances and failure of the Technical incidents, lack of work force, holidays, raw material rejection, breakdowns or temporary stop of works, etc, are seen as normal hazards to be dealt with by SUPPLIER.
- If either Party is prevented from or delayed in performing its obligations hereunder as a result of an event of Force Majeure such prevention or delay shall not be considered a breach of the contract, but shall relieve the parties of their respective obligations to perform and make payment for the Supply, without prejudice of penalties.