In these general terms and conditions of purchase, the following terms shall be deemed as having the meanings given below:
AFFILIATE shall mean, as applied to COMPANY, CONTRACTOR, or SUBCONTRACTOR, a person that (a) directly or indirectly controls it; (b) is directly or indirectly controlled by it; or (c) is under common control with it.
Control, for the purposes of this definition*, shall mean with respect to any person, the right to exercise or cause the exercise of fifty per cent (50%) or more of such person's voting rights.
COMPANY shall mean the entity named at the top of the first page of this PURCHASE ORDER-i.e. MST LLC.
COMPANY GROUP shall mean COMPANY and the CO-VENTURERS for which the WORK is being performed, its and their respective AFFILIATES and its and their respective officers, employees (including agency personnel) and agents.
CONSEQUENTIAL LOSS shall mean (a) indirect or consequential loss, and/or (b) loss of revenue, loss of profit or loss of opportunity whether direct or indirect; in either case connected with the performance of the PURCHASE ORDER and whether or not foreseeable, and except to the extent such loss or damages are part of a third party claim.
CONTRACTOR shall mean the entity identified in the PO HEADER as the Contractor.
CONTRACTOR GROUP shall mean CONTRACTOR, SUBCONTRACTORS, its and their respective AFFILIATES and its and their respective officers, employees (including agency personnel) and agents.
Delivery date: The date on which the goods should reach MST LLC.
Parties: Both MST LLC and the Seller
Seller: The party to the contract with MST LLC
The goods: The materials, components, machines, services, drawings, instructions and technical specifications acquired by MST LLC in accordance with the contract.
INDEMNIFY shall mean "release, protect, defend, indemnify and hold harmless#.
LIBOR shall mean in relation to any period in respect of which an interest rate is to be determined (a) the London interbank offered rates for deposits in USD which is quoted on the "LIBOR01" page on the Reuter Monitor Money Rates Service (or such other page as may replace such page on such service for the purpose of displaying London interbank offered rates for deposits in USD) at or about 11.00 a.m. London time on the day that is two London Banking Days prior to the first day of such period; or (b) if no such rate is quoted at the relevant time, the arithmetic mean (rounded upwards to five decimal places) of the rates quoted by the principal London offices of four prime banks in the London interbank market at or about 11.00 a.m. London time on the day that is two London Banking Days prior to the first day of such period for deposits in USD, or if the rates referred to in (a) and (b) above are not available in respect of the relevant period for any reason, such comparable rate as the Parties may agree.
PO HEADER shall mean the page(s) of this PURCHASE ORDER setting out details of the parties, the scope of the WORK, the price payable by COMPANY to CONTRACTOR, and other details of the agreement between the parties in relation to the WORK, and to which these terms and conditions are electronically attached.
PURCHASE ORDER shall mean the PO HEADER and these terms and conditions.
SERVICES shall mean the services to be provided pursuant to the PURCHASE ORDER.
SUBCONTRACTOR shall mean any party (other than CONTRACTOR) to any contract for the performance or supply of any part of the WORK.
TAX shall mean, all existing or future taxes, corporate income tax or gross revenue taxes, personal income tax, employment taxes and social charges, national insurance, sales taxes, property taxes, import, duties, customs duties, levies, withholdings taxes and fees, stamp duties, charge and other assessments in the nature of taxes, including any fines, penalties or interest, assessed or levied by the appropriate authority.
WARRANTY PERIOD shall mean twenty four (24) months from the date of delivery of the GOODS or completion of the SERVICES.
WORK shall mean all work that CONTRACTOR is required to perform in accordance with the PURCHASE ORDER.
2.1 These general terms and conditions shall be applicable except in the cases of alterations to which the parties expressly agree in writing.
2.2 Acceptance of the assignment implies that the Seller renounces application of the provisions of its general or specific terms and conditions of sale, even where it is stipulated therein that these are solely and exclusively applicable.
3. ESTABLISHMENT OF THE CONTRACT
The contract is deemed to have come into being the moment that MST LLC and the Seller have written/electronic contract, or, in the event of there being no contract, the moment that the Seller receives MST LLC's written order, provided that there is no message to the contrary from the Seller within 7 (seven) calendar days counting from the date on which the written order was sent. The rights and / or obligations set forth in this Agreement may be transferred to any third party only upon mutual consent of the Parties. Such consent must be certified in writing by authorized representatives of the Parties. Otherwise, the agreement on the transfer of rights and / or obligations set forth in this Agreement to any third party will be considered invalid.
4.THE PURCHASE ORDER
4.1 The PURCHASE ORDER shall be read and construed as one document. Except as provided in clause 4.3 below, in the event of ambiguity or contradiction between the PO HEADER and these terms and conditions, these terms and conditions shall be given precedence, unless the PO HEADER expressly modifies a specific provision of these terms and conditions.
4.2 The Company is entitled to enforce the PURCHASE ORDER for itself.
4.3 In the event that a Master Agreement (or other set of contractual terms and conditions) are referenced in the PO HEADER as the basis for the WORK, these terms and conditions shall have no effect and the PURCHASE ORDER shall instead comprise the PO HEADER and the Master Agreement (or other contractual terms and conditions) that are referenced in the PO HEADER.
5. PRODUCTS AND DESCRIPTIONS
5.1 The weights, dimensions, capacities, prices, specifications and other data included in catalogues, prospectuses, circulars, advertisements, illustrations and price lists shall have the character of an approximate indication. These data are only binding insofar and to the extent that the contract makes explicit reference thereto.
5.2 Drawings and technical descriptions handed over by MST LLC to the Seller before or after the establishment of the contract, for the purpose of these being used in the manufacture or assembly of the goods or a part thereof, shall remain the sole property of MST LLC. The Seller may not use, copy, or reproduce these, or transfer or reveal them to third parties, without MST LLC's permission.
5.3 Drawings and technical descriptions handed over by the Seller to MST LLC before or after the establishment of the contract, for the purpose of these being used in the manufacture or assembly of the work or a part of the work, shall remain the sole property of the Seller.
5.4 At the beginning of the guarantee period described in Article 11, the Seller shall provide MST LLC, free of charge and when the latter so requests, with information and other drawings of the products which shall be sufficiently detailed in order to put MST LLC in a position to be able to use and maintain all the parts, as well as carry out standard repairs, and to make product assembly and start-up possible. This information and these drawings shall become the property of MST LLC and the restrictions on their use, as listed in Article 4.3, shall not be applicable to them. However, the Seller may stipulate that they remain confidential.
5.5 Drawings and other documents that are the result of joint efforts of the parties in relation to the fulfilment of the contract shall be the joint property of MST LLC and the Seller. This means, that each party shall be entitled to use these drawings and documents freely for its own requirements.
5.6 The Seller is prohibited from mentioning or using MST LLC's trade name, for reference purpose without MST LLC's written permission. Publicity and advertising relating to the deliveries made to MST LLC may only be carried out by the Seller with MST LLC's prior written permission.
Unless otherwise agreed, the costs of packaging or protection necessary in order to prevent damage during transport under normal circumstances to the destination mentioned in the contract shall be included in the prices mentioned in the offers and in the contract.
7. SAFETY RULES
7.1 The Seller shall be responsible and liable for compliance with the latest laws, rules and regulations in force, and those that were in force at the time the contract came into being, that are applicable as regards safety and hygiene of all materials, components, services, drawings, instructions and technical specifications, as well as environmental, electrical and electromagnetic provisions. The foregoing shall be assessed on the basis of the codes and standard in force in EU/Azerbaijan/Kazakhstan/Georgia (depends on production/sales and delivery site by the contract). In the event of there being no EU/Azerbaijan/Kazakhstan/Georgia code or standard applicable, the parties shall consult as to the applicable standard.
7.2 Should the aforementioned laws, rules and regulations be amended between the dates on which the contract comes into being and the date of delivery, MST LLC shall immediately notify the Seller of this and the parties shall decide in mutual consultation as to the consequences that this will have for the contract.
8. CHECKS AND TESTS
8.1 MST LLC shall be allowed to have the quality of the material used and the quality of the parts checked and verified by its suitably authorised representatives, both during and after the manufacture of said material and parts. These checks and verifications shall be carried out during normal working hours in the workshop, after the place, date and time have been previously agreed with the Seller.
8.2 If, on the grounds of these checks and verifications, MST LLC is of the opinion that certain materials or parts have defects or are not in conformity with the contract, it must make its comments known in writing, accompanying these with the grounds justifying said opinion.
8.3 The fact that no comments are made on the grounds of these checks or investigations shall not detract in any way from the Purchaser's right to refuse the goods if these are not in conformity or if they are affected by visible or concealed defects.
8.4 Unless otherwise agreed, the acceptance tests shall be carried out in the Contractor's (Seller's) workshop during normal working hours. If the technical requirements for the tests are not specified in greater detail in the contract, said tests shall be carried out in accordance with general practice in the branch of industry in question in the country where the goods have to be delivered.
8.5 The Seller shall give MST LLC notification far enough in advance in order to give the latter's representatives the opportunity to be present at the tests. If MST LLC is not represented at the tests because it had not been notified in time, MST LLC shall be entitled to demand a completely new test procedure. If MST LLC opts not to be represented by anyone at these tests, the Seller shall inform it of the test report.
8.6 When it is ascertained in a test that the goods or services have defects or are not in conformity with the contract, the Seller must make good the defects as quickly as possible or see to it that the goods meet the requirements laid down in the contract. Then, if MST LLC so desires, the test will be repeated.
8.7 Unless otherwise agreed, all costs associated with the tests carried out in the Seller's workshop shall be borne by the Seller, except for the personal expenses incurred by MST LLC's representatives.
8.8 If the contract makes provision for tests at the place where the products in question are to be set up, the conditions under which these tests are conducted shall be specially agreed upon between the parties.
9.1. Unless otherwise agreed, the delivery should be affected by the Seller, in accordance with the Incoterms 2000.
9.2 The delivered goods should be in keeping with the stipulations contained in the order, specifications, drawings and quality agreements and with the conditions that can be considered as belonging thereto. They may be deemed as having been accepted by the Company as soon as the definitive inspection carried out by the Company, the method for which is determined by the Company, has given a favorable result. With regard to measurements, quantities and weights, the findings of the Company check shall be applicable.
9.3. If the delivered goods fail to meet the test requirements, the Company reserves the right to freeze the entire delivery.
9.4 The Company shall not pay the Contractor (Seller) for goods that are rejected. The rejected goods will be collected by the Contractor, at the Contractor's expense.
If the rejected goods can be reprocessed, the Seller, MST LLC or a third party shall carry out the repair, at the Seller's expense.
9.5. The Contractor has fulfilled its delivery obligation as soon as the Company has definitively accepted casting models and forging moulds.
9.5.Rejected goods should immediately be replaced by others, at the Contractor's expense and under the Contractor's responsibility, without this resulting in any delay to subsequent deliveries.
9.6. If, on the grounds of repeated rejection, there are justified doubts as to whether the Contractor can meet the delivery or quality requirements laid down by the Company, the Company reserves the right to terminate the agreement, either wholly or partially, with immediate effect. In this case, the Company shall not be obliged to compensate any damage ensuing from this termination for the Contractor.
10. DELIVERY PERIOD
10.1 Unless otherwise agreed in the contract, the delivery period begins to run on the date on the order form which is sent by the Company and the delivery lead-time or delivery date is binding.
10.2 The Contractor (Seller) should immediately notify the Company in writing of any circumstances referred to in Article 19 that could result in a delay in the deliveries. In such cases the Contractor shall be obliged to make every effort and do everything in its power to meet its obligations.
10.3 It is the Contractor's (Seller's) duty to ensure that its sub-contractors (sub-sellers) respect the delivery date, and to take the necessary measures, at the proper time, to replace them in good time, if need be.
10.4 Once the fixed delivery date or lead-time has lapsed, the Contractor (Seller) shall be liable for payment of a lump-sum compensation of 0,5% of the invoice price per week delay, without any prior official notice of default being necessary.
10.5 As soon as the delay reaches 30 (thirty) days, the Company shall be entitled to cancel the contract, without the intervention of the courts, subject to a prior official notification of default having been served and there having been no reaction to this within 8 (eight) days of receipt thereof.
10.6 Application of the above stipulation shall not detract from the Company's right to claim compensation in full from the Contractor.
10.7 The Contractor shall protect the Company against all claims from third parties that might be based on the Contractor's (Seller's) non-performance.
10.8 MST LLC shall not be obliged to affect any purchases if and for as long as production is discontinued on account of a strike at MST LLC or one of its sellers, or for other reasons.
11. PURCHASE ORDER PAYMENT AND INVOICING
11.1 In consideration of the satisfactory performance and completion of the WORK, the Company shall pay Contractor the price stated in the PO HEADER.
11.2 Payment shall be made thirty (30) days after receipt of a correctly prepared and substantiated invoice by the Company subject to the conditions set out below. No invoices shall be submitted until the COMPLETED ORDER have been delivered to the freight forwarder or to the Company. The "Forwarder's Certificate of Receipt", where applicable, must be attached to the invoice as evidence of delivery. Failure of Contractor to provide such documentary substantiation as may reasonably be required by the Company, or failure in any other way to comply with the PURCHASE ORDER requirements, or any other invoice error shall be grounds, at the Company's discretion, for the rejection of the entire invoice.
11.3 If the Company fails to make payment within thirty (30) days of receipt of a correct invoice CONTRACTOR may claim interest on the amount outstanding at 1% per cent per annum over LIBOR from the due date for payment until the date of payment.
11.4 If the Company disputes any item(s) on any invoice, such invoice shall be rejected by the Company and Contractor shall revise and resubmit the invoice for the undisputed amount only. The Company shall pay the revised invoice within thirty (30) days of receipt. On settlement of any dispute, Contractor shall submit an invoice for sums due and the Company shall make the appropriate payment.
11.5 The Company shall, at its own expense, have the right to audit the relevant books and accounts of Contractor in relation to the performance of the PURCHASE ORDER.
11.6. An invoice shall be submitted with the following information as a minimum, to be considered valid for payment:
(a) Contractor's name and address, relevant contact information, and a contact person for invoice queries;
(b) A unique invoice number and a date;
(c) Banking details or remit-to address (including IBAN/Swift Code) necessary for transfer of payment to CONTRACTOR;
(d) Corresponding PURCHASE ORDER number;
(e) Corresponding PURCHASE ORDER item numbers and quantities of each item;
(f) Currency of payment as stated on the corresponding PURCHASE ORDER;
(g) Description of the GOODS/SERVICES delivered, including unit(s) of measure, part number(s) and applicable service dates;
(h) Unit rate(s), any applicable sales tax and total price;
(i) Valid cost object coding (cost centers, WBS elements), where applicable;
(j) Sufficient evidence in the form of supporting documentation (such as field tickets, timesheets, third party invoices, payment certificates, inspection certificates, utilization summaries) with evidence of the Company approval where applicable.
11.7. Where CONTRACTOR is e-enabled, goods receipting and invoicing transactions shall be conducted via the Company's Procure to Pay system or online marketplace. If CONTRACTOR is not e-enabled, receipting and invoicing document transactions shall be conducted using email and facsimile transmission as a minimum, and original invoices shall be mailed to the address for same provided on the PO HEADER.
11.8. Any commercial invoice for shipping/customs purposes must be originally signed and accompany the GOODS.
12. RISK AND TITLE
12.1. CONTRACTOR shall, at its own cost, be responsible for any loss or damage to GOODS until delivered to the Company in accordance with the PURCHASE ORDER.
12.2. Title to GOODS or any part thereof shall vest in the Company absolutely as soon as used in the performance of the WORK, delivered to or paid for by the Company.
13. SHIPPING INVOICE AND PACKING LISTS
13.1. CONTRACTOR shall provide to MSTLLC's nominated freight forwarder a faxed provisional packing list and commercial invoice for shipping purposes at least five (5) working days in advance of the proposed shipment date advising the PURCHASE ORDER number, line item numbers, quantities and values. Upon completion of packing, CONTRACTOR shall advise of the actual cargo weights and dimensions.
13.2. Each package shall be numbered consecutively, e.g. Box No. 1 of -- -- -- , and shall be marked with net and gross weight in Kilograms and dimensions of length, width and depth in centimeters.
13.3. All packages shall be color coded: Green. For cargo requiring to be identified as fragile, or possessing any other inherent vice or hazard, internationally recognized symbols shall be marked on all packages.
13.4. All dangerous cargo must be packed and invoiced separately from other materials. The requirements of the International Maritime Dangerous Goods (MIDGE) code must be applied for all shipment by sea freight. The requirements of ICA/IATA Dangerous Goods Regulations must be applied for all shipment by airfreight. Local statutory regulations must be applied for all shipment by road freight. Hazard data sheets shall accompany all dangerous GOODS. Dangerous Goods Notes (DGN), IATA Certificates and Term cards are to be provided to the Company's freight forwarder prior to shipment.
13.5. GOODS to be suitably packed and protected to ensure safe delivery to the freight forwarder or to the site. Detailed instructions must be provided to the Company prior to shipment for any item that may require special handling or environmental protection during transportation, unpacking, use, storage, dismantling and disposal. A packing list showing content of each package is to be placed on the outside of each package unless specifically requested not to do so by the Company. This packing list shall bear the Shipment Control number (SCN) which will be supplied by the Company's nominated freight forwarder prior to shipment. An identical packing list should also be placed inside the package. No other indication of the contents is to appear on the outside of any package. Each item in the package should have an indestructible label attached to the item or packet of similar items, bearing the following particulars: (a) Order item and item code number given in the PURCHASE ORDER; (b) Part number, (c) Brief description of the item.
14.PERFORMANCE OF THE WORK
14.1 The Contractor (Seller) guarantees that the delivered goods are of good design, of good workmanship and new, are manufactured of reliable material, and that they are suitable for the purpose for which they are intended, a purpose with which the Contractor is familiar. If no purpose is specified, for their ordinary purpose. GOODS and SERVICES shall be free from defects and conform in all respects with the PURCHASE ORDER.
14.2 Contractor shall carry out its obligations with the degree of care, skill and diligence expected from a skilled and experienced person and in compliance with all relevant laws.
14.3 The Company has a right to legal warranty claims. The legal warranty/guarantee claims become statute - barred within 24 months after handing over/ acceptance unless the law provides longer deadlines. In addition to the legal warranty rights, the Company can claim a new urgent delivery/performance in the case of faulty deliveries/performances if a subsequent improvement is not reasonable for the Company.
14.4 The Contractor (Seller) undertakes to make good all defects to the goods as quickly as possible, irrespective of the cause or nature thereof, and to compensate the Company for any and all damage that the Company may have suffered as a consequence of said defects.
15. LIABILITY FOR DAMAGE
15.1 The Seller shall assume all obligations imposed upon manufacturers on the safety of machines, inclusive of its subsequent amendments, as well as the national laws and rules and regulations transcribing these directives into national law, and shall fulfil these to the complete discharge of MST LLC.
15.2 The Seller shall be responsible for ensuring that at the time of delivery the goods comply with the relevant applicable statutory requirements and government rules and regulations in force in Azerbaijan/Kazakhstan/Georgia (depends on delivery site by the contract). The Seller shall see to it that the delivered goods do not infringe any patent rights, trademark rights or any other third-party rights, and shall protect MST LLC against any claims in this respect.
15.3 The Seller shall protect MST LLC against any claims from third parties, including those originating from any public authority that could be founded on the failure to comply with those instruments having the force of law listed in Articles 12.1 and 12.2.
15.4 The Seller shall protect MST LLC against all actions by third parties based on concealed defects that result from defects in the products delivered by the Seller or a shortcoming in the instructions, information or warnings concerning its products.
15.5 This guarantee covers all compensation and any amounts whatsoever that MST LLC may be obliged to disburse in the framework of the aforementioned actions.
15.6 In the event of such actions, the Seller shall place at MST LLC's disposal, free of charge, all information, documents and other items or materials that might be necessary for its defence and as proof of the positions it is adopting.
15.7 The Seller shall only use parts, components, products and raw materials, the seller and/or producer of which can unambiguously be identified.
15.8 Prior to every delivery, the Seller shall furnish MST LLC proof that it has taken out insurance for its aforementioned liability in the form of a policy of sufficient value that covers the entire term of this liability.
15.9 If MST LLC holds a claim for damages in respect of the Seller as a result of non-performance on the part of, or an unlawful deed committed by the latter, MST LLC shall be entitled to suspend, without interest payment, any existing debt liability arising from earlier or subsequent contracts, relating to which there are no disputes between the parties, until a decision has been taken on these damages by the competent court or between the parties in mutual consultation.
15.10 In case of where the delivered/provided products are found to be defected or damaged, the Manufacturer/Supplier shall:
- Arrange shipment, examination, replacement, repair, including but not limited to customs clearance, transportation costs to/from Manufacturer/Supplier;
- Notwithstanding the above point undertake any and all expenses and reimburse MST any and/or all expenses it has reasonably incurred in connection with shipment, examination, replacement, repair, including but not limited to customs clearance, transportation costs to/from Manufacturer/Supplier for any reasons;
- Compensate MST any and all expenses, losses, damages incurred by MST, including but not limited to any and all expenses, losses, damages incurred as a result of any claims of or judgements in connection with such claims, amicable agreements concluded with MST’s customers/clients.
CONTRACTOR shall at all times while performing the PURCHASE ORDER at its own expense maintain all insurance required by any applicable legal requirements. All insurance policies associated with the WORK shall be endorsed to waive all rights of recourse including subrogation against the Company regardless of the respective negligence/fault of the Company or CONTRACTOR and shall be deemed primary to any insurance obtained by the Company.
17. TAXES AND DUTIES
CONTRACTOR shall be solely responsible for all TAXES assessed or imposed on CONTRACTOR and shall fulfill all legal, administrative and accounting requirements. CONTRACTOR hereby INDEMNIFIES the Company from and against all claims/losses whatsoever connected with any TAXES assessed or imposed on CONTRACTOR. CONTRACTOR shall be responsible for the reporting, filing and payment of TAXES and any related fines, penalties or interests imposed directly or indirectly on CONTRACTOR in any jurisdiction.
18. INTELLECTUAL PROPERTY RIGHTS
18.1 The Contractor (Seller) shall be obliged to keep secret all data concerning the drawings, models, part numbers and other resources referred to in Article 5.2 and concerning the activities of the company the Company which may come to its attention or the attention of persons working under its authority, and to have the latter persons respect this duty of confidentiality.
18.2 Drawings, models and other resources that the Company places at the Contractor's (Seller's) disposal, may not be wholly or partially copied, given to third parties for perusal, or used for the benefit of third parties or for purposes other than the fulfillment of the contract at hand, without the written permission of the the Company Purchasing Department.
18.3 In the event of the Contractor (Seller) infringing the above-mentioned obligations, the Contractor (Seller) shall pay the Company the redress for the damage that this causes. This redress shall be due and payable, without notification of default, and shall be subject to an irreducible minimum of AZN 500,000 (five hundred thousand), subject to the Company's right to demand additional remuneration to the amount of the actual damage suffered.
18.4 If, for the fulfillment of the order, tools and/or equipment are/is made available by the Company or are/is made or purchased by the Contractor entirely at the Company's expense, these/this shall remain, or as the case may be, become the property of the Company. The Seller undertakes to keep these drawings, models, tools and other resources at its own expense and risk. The Contractor shall see to it that the models, tools and other resources are well maintained, and are repaired or replaced, at its own expense and risk. It shall insure them, at its own expense, against loss, theft, damage and fire.
19. CIRCUMSTANCES RESULTING IN DISCHARGE OF LIABLITY/FORCE MAJOR
19.1 The following shall count as circumstances resulting in a discharge of liability, insofar as they occur after this contract has come into being and prevent the performance thereof: industrial conflicts and all other circumstances, fire, mobilization, natural disasters, attachment, embargo, currency transfer bans, revolt, shortage of means of transport, general shortage of raw materials, and restrictions on power consumption, if the occurrence of these other circumstances is beyond the parties' control.
19.2 The party that invokes the above-mentioned circumstances must immediately notify the other party of the commencement of said circumstance, and also the conclusion thereof. If one of these circumstances occurs, both the Contractor (Seller) and the Company are relieved of all liability.
19.3 The consequences of the aforementioned circumstances, insofar as these have an effect on the timely fulfillment by the parties of their obligations, are described in Articles 8 and 10. However, if the implementation of the contract within a reasonable period of time becomes impossible as a result of these circumstances, each of the parties shall be entitled to terminate the agreement by means of a written notification, without intervention of the courts.
19.4 In the event of termination of the contract pursuant to Article 14.3, the division of the costs already incurred for the implementation of the contract shall be settled amicably between the parties.
19.5 Should the parties fail to come to an amicable settlement, then the court shall decide which of the parties was prevented from meeting its obligations. If the court is of the view that only one party failed to meet its obligations, all the aforementioned costs shall be borne by this party. If it is the Company that has to bear all these costs, and if the latter has already paid the Contractor more than the amount of costs incurred by the Contractor (Seller) before the termination of the contract, it shall be entitled to repayment of the balance. If the court concludes that both parties were prevented from meeting their obligations, it shall divide the costs between the parties in the manner in which it deems reasonable, taking all circumstances into consideration.
19.6 In the sense of this article, "costs" is understood as meaning actual and reasonable expenses, after each of the parties has limited its damage as far as possible. However, as regards goods delivered to the Company, the part of the price to be paid on the grounds of the contract that relates to the delivery shall also be considered as Contractor's (Seller's) costs.
19.7 If no further deliveries are possible on account of force majeure or winding up, as the case may be, the Contractor shall be obliged to place at the Company's disposal the drawings, tools, etc., that it has used for the fulfillment of its contractual obligations, and to do so in good time.
20. SERVICE PARTS
The Contractor (Seller) undertakes to keep open the possibility for subsequent delivery to the Company of the delivered goods, and the service parts needed for these, for at least 30 (thirty) days, at the same prices and discounts.
21.1 The Company may terminate the PURCHASE ORDER at any time in case of any material breach or if CONTRACTOR becomes bankrupt or insolvent or has any administration order made against it or application is made for any of the above and CONTRACTOR shall discontinue the WORK and comply with The Company's instruction regarding such termination.
21.2 The Company shall have the right to terminate the PURCHASE ORDER at any time without cause. CONTRACTOR shall discontinue the WORK and shall comply with the Company's instructions regarding such termination. the Company shall pay CONTRACTOR, for work and services satisfactorily performed prior to termination for without cause, together with any reasonable associated direct costs necessarily incurred by CONTRACTOR in complying with the Company's instructions.
22. ASSIGNMENT AND SUBCONTRACTING
22.1 CONTRACTOR shall not assign, novate or transfer any of its rights or obligations under the PURCHASE ORDER, or subcontract the whole of the performance, work or services, without the Company's prior written approval.
22.2 The Company may at any time assign, novate or transfer any of its rights or obligations under the PURCHASE ORDER to any member of MST GROUP without CONTRACTOR'S consent, or to a third party with CONTRACTOR'S consent, not to be unreasonably withheld.
22.3 CONTRACTOR shall be responsible for the acts and omissions of any SUBCONTRACTOR.
23.CHANGES AND ORDERS
23.1 Insofar as this is necessary, changes resulting from modified quantities or altered specifications, or the termination of the contract as a consequence of the ordered product being discontinued or changing, shall be subject to a negotiated agreement.
23.2 If, after these negotiations, the Contractor (Seller) is unable to deliver the relevant quantity or quality of goods within the stipulated deadline, The Company shall be entitled to terminate the contract. In this case, the Contractor (Seller) shall not be able to claim any compensation of any kind whatsoever.
23.3 Costs arising for the Contractor (Seller) that relate to the production of quantities that have not been ordered, shall be borne in full by the Contractor (Seller), irrespective of the reason for the change in quantities. All goods that have thus been produced shall be destroyed, or at least rendered unusable by the Contractor (Seller), at the latter's own expense.
24. ANTI-CORRUPTION UNDERTAKINGS and CODE OF CONDUCT
24.1 Anti-Corruption Undertakings: The Company has a zero tolerance policy towards bribery and corruption. This zero tolerance policy extends to all companies and individuals who provide goods or services to the Company. CONTRACTOR warrants that, in connection with this PURCHASE ORDER, CONTRACTOR GROUP (i) has complied and will comply with all anti-bribery and corruption, anti-money laundering laws, rules, and regulations (including, but not limited to, Bribery Act 2010 of the United Kingdom, Foreign Corrupt Practices Act 1977 of the United States of America, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions) applicable to CONTRACTOR GROUP or the Company, and (ii) will not, directly or indirectly, make or allow FACILITATION PAYMENTS, and (iii) will not, offer, give or agree to give any person whosoever, or solicit, accept or agree to accept from any person, either directly or indirectly, anything of value in order to obtain, influence, induce or reward any improper advantage (the Anti-Corruption Obligation).
24.1.1 CONTRACTOR agrees it shall on an on-going basis, and subject to any applicable data privacy law and the attorney-client or work product privileges, unless expressly prohibited by law:
(a) immediately disclose in writing to the Company details of any potential breach or alleged breach of the Anti-Corruption Obligation; and
(b) on reasonable request, use best endeavors to co-operate with the Company to ensure and monitor compliance with the Anti-Corruption Obligation, which shall include promptly responding in reasonable detail to any notice from the Company reasonably connected to the Anti-Corruption Obligation and making any relevant books, records, or personnel relating to this PURCHASE ORDER and CONTRACTOR'S compliance with the Anti- Corruption Obligation available for review by COMPANY.
(c) CONTRACTOR shall also provide the Company with such further assurances or certificates that COMPANY may request from time to time during the term of the PURCHASE ORDER relating to matters covered by this Clause 24.1, and CONTRACTOR shall if requested certify to the Company in writing its compliance with this Clause 24.1.
24.1.2 CONTRACTOR shall throughout the term of this PURCHASE ORDER:
(a) institute and maintain policies and procedures which are reasonably expected to ensure compliance with all applicable laws and the Anti-Corruption Obligation, including the maintenance of complete and accurate books and records and an effective system of internal accounting controls;
(b) maintain at its normal place of business, throughout the term of this PURCHASE ORDER and for at least six (6) years following its expiration or termination, detailed books, records and accounts which accurately and fairly reflect all transactions and payments made by CONTRACTOR in connection with this PURCHASE ORDER;
(c) make clear, in its dealings connected to this PURCHASE ORDER, that it is required to act, and is acting, in accordance with the Anti-Corruption Obligation; and
(d) on reasonable notice, and subject to any applicable data privacy law, legal privilege, or express legal prohibition, permit the Company or its duly appointed third party representatives to access, review, inspect and make copies of CONTRACTOR and its AFFILIATES# books, records and accounts in order to audit CONTRACTOR and its AFFILIATES# compliance with the Anti-Corruption Obligation. The rights set out in this Clause 24.1.2 will be exercised in accordance with all applicable competition laws.
24.1.3 CONTRACTOR represents, warrants, and covenants that except as otherwise disclosed in writing to COMPANY, as of the effective date of the PURCHASE ORDER and during the term of this PURCHASE ORDER:
(a) none of its directors, officers, employees, contractors or other service providers in connection with this PURCHASE ORDER is a PUBLIC OFFICIAL; and
(b) no PUBLIC OFFICIAL will have a direct or indirect interest in the PURCHASE ORDER or have any legal or beneficial interest in any payments made by the Company under this PURCHASE ORDER; and
(c) it shall promptly notify the Company in writing of any change in the foregoing.
24.1.4 CONTRACTOR represents and warrants that except as otherwise disclosed in writing to the Company, neither it nor its personnel, directors, officers, or key employees in connection with this PURCHASE ORDER have in the last six (6) years:
(a) been convicted of any offense involving bribery, corruption or money laundering; or
(b) been or are the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offense or alleged offense involving bribery, corruption or money laundering.
(c) Payments by the Company to CONTRACTOR shall only be made by wire transfer to a bank account of CONTRACTOR, details of which shall be given by CONTRACTOR to the Company in writing. Such notification shall be deemed to constitute a representation and warranty that the bank account so notified is owned solely by CONTRACTOR and that no person other than CONTRACTOR has any ownership of or interest in such account.
24.1.5 CONTRACTOR further agrees and undertakes that with respect to (i) any member of CONTRACTOR GROUP (including any of their agents and other intermediaries) in connection with this PURCHASE ORDER and (ii) any other business transactions CONTRACTOR or its AFFILIATES may have involving the Company, that:
(a) it shall conduct appropriate anti-corruption and other due diligence prior to appointing or engaging such third party providers to ensure that they are duly qualified to perform the tasks for which they have been engaged, that they are of good reputation, and that they would present no corruption-related or other compliance risk or liability to the Company;
(b) it shall cause all such third party providers to agree, in writing, to compliance with laws and Anti-Corruption Obligations sufficient to satisfy a best practices compliance program, and where consistent with such program, materially equivalent as those set forth in this Clause 24.1.
(c) it shall, where consistent with a best practices compliance program,regularly audit and/or monitor such third party providers to confirm their compliance with their Anti-Corruption Obligations.
24.1.6 In addition to any other rights or remedies the Company may have under this PURCHASE ORDER or at law (including, as applicable, the right to damages for breach of contract), the Company shall have the right to terminate this PURCHASE ORDER or suspend all further services and payments with immediate effect if:
(a) the Company reasonably believes in good faith that CONTRACTOR GROUP has materially breached the Anti-Corruption Obligation or any of the requirements set out in this Clause 24.1, after providing notice and a reasonable time for CONTRACTOR to demonstrate there is no breach; or
(b) any member of CONTRACTOR GROUP become designated a RESTRICTED PARTY.
24.1.7 For the purposes of this Clause 24.1, the following definitions shall apply: #FACILITATION PAYMENTS# shall include infrequent payments made to a PUBLIC OFFICIAL which are above and beyond the legally established fee(s) for the particular service of that PUBLIC OFFICIAL and/or his office, and which payments are intended to facilitate prompt, encourage or motivate such PUBLIC OFFICIAL to perform routine, nondiscretionary governmental actions that: (i) the PUBLIC OFFICIAL ordinarily performs and is required to perform without such payment; and (ii) both parties are entitled to under the laws of the relevant country. PUBLIC OFFICIAL# shall include (i) any minister, civil servant, director, officer or employee or other official of any government or any department, agency or body, and/or of any government-owned or controlled company, any company or enterprise in which a government owns an interest of more than thirty percent, and/or of any public international organization; (ii) any person acting in any official, legislative, administrative or judicial capacity for or on behalf of any government department, agency, body, or public international organization, including without limitation any judges or other court officials, military personnel and customs, police, national security or other law enforcement personnel; and (iii) any close family member of any of the foregoing. RESTRICTED PARTY means any person who is identified from time to time by any government or legal authority under applicable trade sanctions, export controls, anti-money laundering, non-proliferation, anti-terrorism and similar laws as a person with whom trade or financial dealings and transactions by either the Company or CONTRACTOR GROUP are prohibited or restricted.
24.2 CONTRACTOR shall conduct its business in a manner that respects the rights and dignity of all people and internationally recognized human rights, including without limitation:
(a) not employing, engaging or otherwise using forced labour, trafficked labour or exploitative child labor; nor engaging in or condoning abusive or inhumane treatment of workers;
(b) providing equal opportunities and avoiding discrimination.
25. LIENS, ATTACHMENTS, AND ENCUMBRANCES
CONTRACTOR shall not issue, or permit to be issued, any lien, attachment, charge, claim, encumbrances on the WORK, the GOODS or on any property of the Company either in the possession of CONTRACTOR or at the CONTRACTOR'S facilities.
The Company or its duly authorized representative shall have access, at all reasonable times, to CONTRACTOR's offices, work sites, facilities, and all documentation and data pertaining to WORK performed or Goods purchased under the PURCHASE ORDER, for the purpose of auditing and verifying amounts invoiced and compliance with the provisions of this PURCHASE ORDER. CONTRACTOR shall preserve all documents related to this PURCHASE ORDER for a period of three (3) years after final payment under the PURCHASE ORDER or three (3) years after termination, whichever comes first
27. PROVISIONS OF A MISCELLANEOUS NATURE
27.1 In the case of collusion between the Contractor (Seller) and one or more of the Company's members of staff, or in the event of a dishonest proposal made by one of said parties to the other, the Company reserves the right to terminate the contract without a period of notice or any compensation.
27.2 In the event of non-performance on the part of or an unlawful deed committed by the Contractor (Seller) in respect of the Company, all costs pertaining to legal assistance, including all extra-judicial costs, incurred by the Company in this respect shall be borne by the Contractor (Seller).
28. CONFIDENTIAL INFORMATION
CONTRACTOR shall keep the existence and terms of the PURCHASE ORDER and any information which it learns about the Company or COMPANY GROUP in strict confidence and will not disclose the same to any third party without the prior written consent of the Company.
CONTRACTOR shall not use the Company's name in connection with the PURCHASE ORDER or disclose the existence of the PURCHASE ORDER to any third party without the Company's prior written consent.
30. COMPLIANCE WITH LAW
30.1 CONTRACTOR shall, and shall ensure that all members of CONTRACTOR GROUP shall, comply with all applicable laws, rules and regulations of all authorities in relation to the performance of the PURCHASE ORDER.
30.2 All costs for compliance with all applicable laws, rules and regulations and obtaining authorities, approvals, licenses and permits for performance of the WORK shall be for the account of CONTRACTOR, unless otherwise provided for in the PURCHASE ORDER.
31. GENERAL LEGAL PROVISIONS
31.1 Entire Agreement: The PURCHASE ORDER shall comprise the entire agreement and understanding between the parties. No terms contained in any other document including; quotations, acknowledgements, acceptances, invoices or specification will form part of the PURCHASE ORDER.
31.2 Severability: If any part of the PURCHASE ORDER is held by a court of competent jurisdiction to be invalid or unenforceable, the validity of the remainder of the PURCHASE ORDER shall not be prejudiced thereby.
31.3 Continuing Obligations: Save as otherwise expressly provided herein, termination or completion or expiration of the PURCHASE ORDER shall not affect the rights and obligations of the Company and CONTRACTOR under Clauses 5, 7, 8, 9, 11, 12, 9.0, 10.0, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31.
32. APPLICABLE LAW
Unless expressly agreed otherwise in writing, these general terms and conditions of purchase and/or the contracts to which these conditions apply, as well as any disputes relating to these general terms and conditions of purchase and/or the contracts to which these conditions apply, shall be subject to Azerbaijani law.
33. COMPETENT COURT
In the event of disputes deriving from these conditions and/or the contracts to which these conditions apply, the courts of the legal district in which the Company's company seat is established shall have sole jurisdiction.
All communications associated with the PURCHASE ORDER shall be directed to COMPANY via the buyer named in the PO HEADER .
End of the Document