Terms & Conditions of Purchase of Goods and/or Services
In these General Terms and Conditions of Purchase of Goods and/or Services (these “General Terms and Conditions of Purchase”), “Buyer” shall mean the AquaBioTech Ltd purchasing or acquiring Goods (defined below) and/or Services (defined below) from the entity selling or providing such Goods and/or Services (“Seller”). The Buyer and Seller are collectively referred to as the “Parties” or independently as a “Party”.
1.1. Unless otherwise stated in a written agreement duly signed by Buyer and Seller, the present General Terms and Conditions of Purchase shall apply to all Purchase Orders for raw materials, finished products, equipment, software, any other tangible and/or intangible products (collectively hereafter referred to as "Goods") and/or services (“Services”) of any kind issued by Buyer. Notwithstanding anything to the contrary stated in Seller's conditions of sale and services, any acknowledgement of order issued by Seller (“Order Confirmation”), Seller agrees that Seller’s acceptance of Buyer's purchase order constitutes Seller's express disclaimer of all its conditions of sale and services.
1.2. An order will be considered as final and binding upon Buyer's reception in writing of Seller's Order Confirmation within fifteen (15) days from the date of order. Failure to return an Order Confirmation within fifteen (15) days will give Buyer the right to cancel the order in writing, without paying any liquidated damages, compensation, or penalty. Any condition set out in Seller's Order Confirmation that modifies, supplements, conflicts with or contradicts any of these General Terms and Conditions of Purchase shall be deemed invalid and not applicable.
1.3. An order bearing mention "price to be indicated" or other similar mention, will be deemed valid only upon Buyer's acceptance in writing of the price to be indicated.
PRICING, INVOICING AND PAYMENT
2.1. The applicable price is the price mentioned in Buyer's purchase order. Such price shall always be stipulated firm, without any applicable tax, and not subject to revision or escalation, or any adjustment due to currency fluctuation during the term of the purchase order. Seller agrees to bear the risk of any economic change during the term of the purchase order or any circumstance which may render more onerous the delivery of the Goods and/or the performance of the Services. Unless otherwise agreed in writing, price is fully inclusive of relevant appropriate packaging for shipment of the Goods and all costs, and risks related to or in connection with the performance of the purchase order. No extra charge of any kind will be allowed unless specifically agreed in writing by Buyer in advance and stated on the purchase order.
2.2. Seller shall invoice Buyer according to the invoicing schedule set out in the purchase order. Invoices shall include Purchase Order Number, the Name and Address of the Seller, the Quantity and Description of supplied Goods and/or Services, date and reference of Delivery Notice and detailed Price, and shall be accompanied by all the necessary supporting documents. Seller shall communicate all information regarding the status of the shipment and delivery of the Goods and/or performance of the Services.
2.3. Unless otherwise agreed in writing on the purchase order, payment term shall be sixty (60) days from receipt of invoice, end-of-month.
PACKAGING AND DELIVERIES
3.1. Unless special packaging is specifically requested by Buyer on the purchase order, Seller shall supply the Goods with adequate packaging in compliance with applicable laws and regulations, if any, taking into account the nature of the Goods, the type of shipment to be used and taking all measures to protect the Goods from bad weather, corrosion, loading accidents, transportation or storage constraints, vibrations or shocks. In any case Goods shall be packed, packaged, marked and otherwise prepared for shipment in a manner which is (i) in accordance with applicable laws and regulations, if any, and good commercial practice, (ii) acceptable to common carriers for shipment and (iii) adequate to insure safe arrival of the Goods at the named destination.
In case Seller has been requested by Buyer to use special packaging, it shall comply with all the corresponding instructions provided by Buyer.
3.2. Seller shall mark all packages and containers with all necessary lifting, handling, and shipping instructions, clearly identifying and marking items that need special care or special storage and/or transportation conditions, indicating the precautions to be taken. Seller shall label each package and container with shipping information, purchase order numbers, date of shipment, and name and address of consignor and consignee.
3.3. Seller shall be considered solely responsible for any damage to the Goods or any extra expenses due to incorrect or inadequate packaging, marking or labelling, except for damages or expenses which are solely and directly attributable to special packaging, marking or labelling instructions provided in writing by Buyer.
3.4. When delivering Goods, Seller shall at the time of dispatch send Buyer a notice of delivery in two (2) copies, specifying (i) the complete reference number of the purchase order and its date, (ii) the complete address of the consignor and of the consignee warehouse, (iii) a detailed description of the Goods, (iv) the total number of packages in the shipment, (v) the identification gross and net weight of each package, (vi) the mode of transportation, and (vii) the date of shipment.
3.5. The method of delivery and the respective obligations of the Parties shall be specified in the purchase order, subject to INCOTERMS 2020. Where not otherwise specified, carriage of Goods shall be at Seller's own risk and expense. In any case, Seller shall provide adequate insurance of the Goods until arrival of the Goods at Buyer's premises or the destination otherwise agreed.
TIME SCHEDULE AND DELAYS
4.1. Time schedule and delivery date(s) of the Goods and/or Services are specified in the purchase order. Seller's acceptance of the purchase order means Seller's irrevocable commitment to meet the time schedule and delivery date(s) thereby set out.
4.2. Deliverables can be changed only by written agreement signed by both Parties.
4.3. Seller shall promptly inform Buyer in writing of the full details of any events which may delay the execution of the purchase order, without however being entitled to any claim to extend the delivery time therefor. Seller shall make all reasonable efforts to minimize the delay in delivery and mitigate the
consequences of the delay. Except in case of a Force Majeure Event, Buyer shall have the right to cancel the purchase order without Seller having the right to any indemnity or compensation and with Buyer preserving its right to claim for any damage, loss or prejudice arising from the delay.
4.4. If the Buyer requires information from the Supplier for any pending process, the processing time does not commence before the Supplier has made this information available to the Buyer correctly and in its entirety, and any delays in the provision of information from the Supplier to the Buyer shall
decrease the deadlines for the Supplier by the period of the delay.
PERFORMANCE, INSPECTION AND REFUSAL OF GOODS, SERVICES
5.1. Seller agrees that during the time of performance of the purchase order, Buyer shall have the right during business days and working hours to access Seller's premises to supervise the manufacturing process or give special instructions and to control and/or test ordered Goods, Services and/or Deliverables, using Seller's plant control and testing facilities. Conditions and modalities of such inspections shall be agreed by the Parties in advance. Such
inspection shall not in any case reduce or limit Seller's liabilities and warranties towards Buyer. Seller undertakes to answer any questions raised by Buyer and upon Buyer’s request to certify the origin of the Goods, Services and/or Deliverables.
5.2. Buyer shall have the right to refuse Goods, Services and Deliverables that do not comply with the relevant purchase order or the applicable specifications or requirements. Non acceptance of Goods, Services and/or Deliverables shall promptly be notified to Seller by e-mail or by any other written instrument. Seller shall at its expense take back non-accepted delivered Goods and/or Deliverables, or with respect to nonaccepted Services, at Buyer’s request, re-perform such Services (to the extent feasible), within thirty (30) working days from date of reception of the notice of non-acceptance.
After the thirty (30) working days period has elapsed, Buyer will return the non-accepted Goods and/or Deliverables to Seller at Seller's expense or with respect to non-accepted Services which Buyer had not requested Seller to reperform, Buyer and Seller shall consider such Services refused.
5.3. Prior payment to secure cash discounts does not constitute Buyer's acceptance of the Goods, Services and/or Deliverables.
5.4. Non-refusal of the Goods, Services, and/or Deliverables does not in any way limit the warranties as per Section 9 below.
6.1. Unless otherwise agreed in writing by the Parties, Seller shall warrant for a period of twenty-four (24) months as from delivery of the Goods and as from acceptance of the Goods supplied and/or Services performed that deliverables (i) shall comply with all the specifications, drawings and data exchanged between Buyer and Seller, and with all the requirements and conditions written on the purchase order, (ii) are of good workmanship and free from any design, material, manufacturing or operating defect, (iii) are of merchantable quality and offer the expected and required security during their use. Seller remains responsible for the supply of all parts necessary for the proper functioning of the Goods, and its adaptation to the use to which the Goods are intended, or to which one can legitimately expect, including where this is not expressly required by the Buyer, but within the limits of use.
6.2. During the warranty period, Buyer shall notify Seller in writing of any defect or malfunction of Goods and/or Services supplied, and Seller shall without any delay and at its expense replace or repair the Goods or correct the defect or malfunction affecting the deliverables made available upon completion of the service. Seller shall provide another twenty-four (24) month warranty period for any replacement, repair or correction made during the warranty period, starting on the day of successful and satisfactory completion of such replacement, repair or correction of the Goods and acceptance of the Deliverables. Transfer of title from Seller to Buyer of the replaced, repaired or corrected Goods and/or Deliverables shall take place upon delivery of the same.
6.3. If Seller does not satisfactorily replace or repair the Goods or correct the defect or malfunction affecting the Deliverables within thirty (30) days following notification of such default or non-functioning of the Goods and/or Deliverables, Buyer shall have the right, at Buyer's exclusive option, in addition to any other rights and remedies available by law or in equity, to (i) make the replacement, repair or correction itself at Seller's sole cost and expense, or (ii) have such replacement, repair or correction made by a third party at Seller's sole cost and expense, or (iii) to obtain from Seller total reimbursement of the purchase price paid for the defective or malfunctioning Goods and/or Deliverables.
6.4. Seller agrees that the warranties specified herein shall be in addition to any warranties implied by law or expressly granted by Seller other than specified herein and to any other warranties, whether express or implied, applicable to the relevant purchase. They shall survive any inspection, test, acceptance and payments by Buyer, as well as any termination of orders or of agreements related to orders.
7.1. Within the agreed time schedule and at the latest upon delivery of the Goods and/or Deliverables, Seller shall supply Buyer with all the technical documentation relating to the Goods and Deliverables, including in particular the user and maintenance manuals, the training manuals, drawings, technical data sheets, product safety data sheets, factory inspection certificates, certificates of conformity and any other relevant documentation.
8.1. Severance. In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof.
8.2. Waiver. Buyer's waiver of a Seller's breach or default under these General Terms and Conditions of Purchase shall not be a waiver of any subsequent default. Failure of Buyer to enforce compliance with any term or condition hereof shall not constitute a waiver of such term or condition nor shall it affect
Buyer's right to enforce compliance to such term or condition at a later time.
8.3. Observance of laws and regulations. Seller is aware of, and shall in all respects abide by, laws and regulations issued by any local or other authorities, and any rules or regulations issued by private or public organizations relating to its activity within the framework of the implementation of the purchase order. The Seller certifies that it complies with the regulations in force with regard to the Environmental and Health & Safety aspects of its activities.
8.4. Sub-contracting. Seller shall not, without Buyer's prior written consent, sub-contract directly or indirectly at any level the performance of the purchase order or any part thereof.
8.5. Assignment. Neither Party shall without the prior written consent of the other Party assign or otherwise transfer partially or totally its rights and obligations under any purchase order. Notwithstanding the foregoing, either Party may assign any purchase order to any company, directly or indirectly owned or controlled by its parent company and/or to any company with which it may merge or consolidate or to which it may sell part or all of its business, provided that such company shall assume and agree to perform the obligations of the assignor under such purchase order and accept an obligation to impose the same or similar conditions or obligations on any assignee or transferee from it. For the purposes of this Section, ownership or control means an ownership or controlling interest, either direct or indirect, representing more than 50% of the voting capital of the assignee.
8.7 Attorneys’ Fees. If any legal action is necessary to enforce these General Terms and Conditions of Purchase, Buyer shall be entitled to reasonable attorneys' fees and expenses in addition to any other allowable relief.