1. Essential Conditions; Acceptance.
Acceptance of the order by the supplier (“Seller”) automatically implies acceptance of these General Terms of Purchase which form an integral part thereof and govern the contractual relations between the parties subject to any stipulations in the special terms of the order. The Seller waives its own general terms of sale.
The Seller accepts the order by signing the Osborn-Unipol LDA (“Buyer”) Purchase Order and returning it to Buyer with no reservations or alterations. Buyer’s commitment to purchase is contingent upon the Seller’s acceptance of all the provisions of the order. Delivery of products or the start of production of ordered products will be deemed to constitute a tacit acceptance of these General Terms of Purchase even though Seller does not returns the Buyer Purchase Order with its signature.
2. Progress Undertaking; Changes.
The Seller undertakes to look for replacement solutions with its own suppliers in order to maintain its technical level and make its prices more competitive.
If Buyer wishes to change the quantities or specifications of the supplies during fulfilment of the order, it shall inform the Seller. Unless otherwise indicated within one week of the sending of a new purchase order specifically referring that it constitutes a revision to the prior Purchase order and indicating the specific changes shall be deemed accepted by the Seller, and the parties shall agree on the date of application to deliveries. The Seller may not claim any compensation or change in the unit price stipulated in the basic order, except in the case of major changes that lead to a relevant increase of costs incurred by Seller.
3. Inspection.
For each consignment, the Seller shall, on its own responsibility, provide a certificate of conformity of the supplies with current Portuguese and European regulations, with good practice and with Buyer’s specifications in the order.
The Seller also undertakes to supply Buyer with products manufactured under a quality assurance system similar to an ISO 9000.The Seller shall in no case be relieved of its responsibility by inspections made by Buyer before or during delivery/acceptance. Reports on such inspections shall be drawn up and enclosed with the invoice.
4. Delivery; Acceptance.
The contractual delivery date is an essential condition of Buyer’s undertaking. It refers to supplies unloaded at the delivery point specified in the order.
No early deliveries may be made without Buyer’s prior approval in writing.
Goods shall be delivered duty paid, as defined in Incoterms.
If the special terms of the order specify acceptance of the supplies, acceptance shall not take place until Buyer has issued a positive report on inspection of the supplies and of standard items produced with the latter.
5. Delivery Times; Penalties.
If the Seller does not deliver the complete supplies as specified by the contractual date, except in cases of force majeure, penalties shall be payable calculated on the basis of the total value of the order at a rate of 1% per day’s delay up to a maximum of 15% of this total value. Above this maximum, Buyer reserves the right to cancel the order, completely or partly, at any time, as provided for in Article 18 below.
6. Packaging; Literature.
The supplies, marked with the Buyer item code, shall be delivered in packaging adequate to preserve them during storage and transport. Prices shall in principle include packaging unless Buyer has accepted invoicing for the packaging and this appears in the order.
Packaging shall in no case be returnable without Buyer’s prior approval in writing, and it shall in any case be returned at the Seller’s expense. Two copies of literature in Portuguese on the use and maintenance of the supplies shall be provided with all supplies.
7. Dispatching; Note.
The Seller shall issue a delivery note in duplicate for all consignments, giving the references and date of the order, a precise description of the supplies, the Buyer item code, the quantities delivered, the number of parcels and the place of delivery as stipulated in the order.
The original of the delivery note shall be placed inside the packaging of the supplies dispatched. The duplicate and the certificates of conformity, quality certification and inspection reports shall be mailed to Buyer at the same time as the invoice.
8. Conformity; Refusal.
Supplies not as specified shall be returned to the Seller, carriage forward, at the latter’s risk and expense. The Seller shall immediately issue a credit note. Such supplies shall be deemed undelivered.
9. Transfer of Ownership; Transfer of Risks.
Ownership shall be transferred according to the common law of sale. Risks shall be transferred when the supplies are delivered. If acceptance is scheduled, the Seller shall retain the risks inherent in the supplies until Buyer has issued a positive report.
10. Prices.
The prices mentioned in the order shall be firm and not subject to revision. They shall include duty and, unless otherwise agreed, packaging.
11. Invoices.
Invoices shall be made out in duplicate by the Seller, showing taxes charged, Buyer references, the references of the order, the number of the delivery note, the Buyer item code, the quantities delivered and the unit price. Both copies of invoices shall be sent to Buyer, at the invoicing address given in the order, on the day when the supplies are dispatched.
Any invoices which do not comply with the regulations or with this article will be returned to the Seller immediately.
12. Payment; Set-Off.
Unless otherwise stipulated in the order, payments shall be made by bill of exchange at 90 days end of month of delivery/acceptance, the 10th of the following month.
Buyer reserves the right to deduct debit notes and any sums owed by the Seller from sums due to the Seller.
13. Non-Transferability.
The Seller undertakes not to transfer or delegate the benefit of this order, not to sub-contract fulfilment thereof, nor to transfer the debt represented by the price of the supplies, without Buyer’s prior approval in writing.
Buyer’s approval shall not relieve the Seller of its guarantee obligation nor of its responsibility to Buyer.
14. Tooling/Moulds/Equipment.
If fulfilment of the order requires special tooling, moulds or equipment (“Tooling”) which is lent by Buyer to the Seller, the Tooling shall remain Buyer’s exclusive property and shall be used only to fulfil orders placed by Buyer. Such Tooling left in trust with the Seller shall be marked with an ownership plate in Buyer’s name, which the Seller undertakes not to conceal or remove. The Seller undertakes to inform Buyer immediately if Tooling left in trust is seized or requisitioned, and to take every step to ensure that Buyer’s rights of ownership of such Tooling are recognised.
Such Tooling shall be returned to Buyer immediately and in proper working order as soon as Buyer requests this in writing, otherwise a penalty of 1 500€ per day’s delay shall be charged. The Seller shall maintain and repair the Tooling at its own expense. The Seller shall be responsible for risks and shall ensure that the Tooling is properly covered by its own insurance policies. In the event of loss or damage, the Seller shall compensate Buyer at the replacement value of the Tooling and also for any financial losses suffered by Buyer. For this purposes the Tooling shall be valuated before being lent by Buyer to Seller.
Buyer reserves the right to inspect the Tooling in trust with the Seller at any time, together with the routing cards for the Tooling.
15. Contractual Guarantee.
(a) Guarantee of Satisfactory Operation. The Seller guarantees Buyer against any defective design, workmanship and material in the supplies for 24 months from the date of delivery or acceptance if the latter is scheduled. The Seller accordingly undertakes, if Buyer or the latter’s own customer discovers any defect or malfunctioning of the supplies, to repair or replace the supplies in their environment at its own expense (including the expenses of any travel by its personnel, disassembly and reassembly) so that they in every way operate as ordered and meet their intended purpose. Under this guarantee, repairs shall be carried out in compliance with general health and safety rules and with the policies and procedures of the site where the supplies are repaired.
If the Seller, when called on to implement its guarantee, does not take effective action within two weeks, Buyer reserves the right to take action or to have action taken by any third party in the Seller’s place at the latter’s expense. Any repairs carried out or components replaced, reworked or repaired under this guarantee shall themselves be guaranteed for 24 months in the conditions defined above. Only wearing parts shall be excluded from this guarantee.
The Seller shall be liable for any direct and indirect damage resulting from faulty supplies.
(b) Supply of Spare Parts. The Seller shall supply all spare parts for a period of 15 years from delivery/acceptance of the supplies.
16. Patent Rights/Dispossession Guarantee.
Any intangible creations, research, studies, manufacturing details, drawings or designs produced by the Seller or by Buyer for the Seller for the purposes of this order shall be the exclusive property of Buyer, which the Seller expressly accepts, on the understanding that the price of the order includes fair payment thereof. The Seller thus undertakes to return all the above documents to Buyer as soon as this order ends, for whatever reason.
If the said creations include a patented process owned by the Seller, Buyer shall automatically be granted a free non- exclusive licence to the process throughout the validity of the patent. The Seller furthermore guarantees Buyer against any claims from third parties regarding patent rights to the supplies ordered and undertakes to take Buyer’s place if it is held liable and to repay any costs and compensation incurred by Buyer.
17. Confidentiality.
The Seller, its personnel and its sub-contractors undertake not to divulge information of any kind, on any medium, received from Buyer or discovered during visits to Buyer’s sites. Such information shall be deemed strictly confidential and shall be used only to fulfil the order.
The Seller undertakes not to exhibit any components or supplies produced to Buyer’s specifications nor to reveal its business relations with Buyer to third parties without Buyer’s prior written approval.
18. Cancellation.
Buyer may automatically and unilaterally cancel the order, with no compensation due to the Seller and without prejudice to any compensation claimed by Buyer, in the following cases: (a) two weeks after sending a formal demand (i) which is not fully complied with by the Seller, if the latter does not carry out any of its obligations under the order, or (ii) in a case of force majeure, the effects of which last more than one month, (b) immediately, when maximum penalties have been reached.
19. Tolerance.
Buyer’s tolerances in the performance of this agreement shall not establish any rights for the Seller nor be interpreted as creating a novation.
20. Settlement of Disputes.
This agreement is governed by Portuguese law. Any dispute arising from it which cannot be settled amicably shall be submitted to the courts in the locality where Buyer has its head office.
Version 7-2016