Surface Finishing Solutions

Transcription

1 Surface Finishing Solutions TERMS AND CONDITIONS OF PURCHASE 1. GENERAL REMARKS 1.1 The following General Terms and Conditions of Purchase (hereinafter referred to as Purchase Conditions ) shall apply to all orders placed by TIGER Drylac Canada Inc., TIGER Drylac U.S.A., Inc., TIGER Drylac Mexico S.A. de C.V. and Midwest Powder Coatings (hereinafter referred to as TIGER ), unless otherwise expressly agreed upon in writing. Once an order based on these Purchase Conditions is placed, the Purchase Conditions shall subject to their modification also apply to all further orders, even though no explicit reference is made therein. The Purchase Conditions shall prevail over any contradicting terms and conditions from a supplier, unless otherwise explicitly agreed upon in writing. The term supplier shall mean any mandated contracting party of TIGER under a purchase, work or service contract. 1.2 TIGER s performance or silence shall not implicate acceptance of the supplier s general terms and conditions. 1.3 Side agreements, side letters, representations, and modifications of the Purchase Conditions shall only be valid if agreed upon in writing and with regard to the individual case in question. 1.4 All of the supplier s documents shall contain the relevant TIGER order number. Deliveries, notices, invoices and other documents that do not contain the TIGER order number shall be considered as not received for processing. 1.5 In the event anyone or more of the provisions of these Purchase Conditions 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 of these Purchase Conditions. Any provision which is invalid or unenforceable shall be replaced by a provision which best meets the economic purpose of the invalid or unenforceable provision TIGER is, at any time, entitled to modify the Purchase Conditions and will inform the supplier with regard to such modification and the date of its legal effectiveness at least one month in advance. The modification of the Purchase Conditions shall come into effect within one month from receiving the relevant information, provided that the supplier has not disagreed to the modification. 1.8 TIGER shall at any time be entitled to correct obvious errors, such as typographical errors, errors in spelling or calculation errors on orders, offer acceptances and similar documents. 2. OFFERS Offers provided to TIGER shall be non-binding and free-of-charge for TIGER. All offers in writing provided to TIGER shall be binding for the offeror/supplier for a minimum period of four (4) weeks from TIGER s receipt and shall not constitute a claim for the placement of an order or remuneration by TIGER, irrespective of the offeror's/supplier s preparatory work. 3. PLACING ORDERS 3.1 TIGER orders shall only be legally binding if executed on the TIGER standard order forms. Verbal orders or orders by telephone as well as verbal agreements and modifications shall only be legally binding if they are confirmed by TIGER in writing. 3.2 Delivery schedules agreed upon for a longer time period between the supplier and TIGER shall only serve for the purposes of advanced planning and are not binding regarding the supply amount or the delivery date, but rather need a separate order placed by TIGER. 3.3 The assignment or transfer of orders in full or in part to third parties or to a supplier s subcontractor requires the written consent of TIGER for each individual case. The supplier is also liable for its subcontractor's compliance with these Purchase Conditions. In case of non-compliance with this provision, TIGER shall not be obliged to accept deliveries or services and the consequences of non-performance shall take effect. 3.4 The supplier is obliged to timely inform TIGER about possible modifications with respect to the used material, the manufacturing technique or similar. 3.5 TIGER may at any time cancel or reschedule orders. If there is no written agreement regarding payment of compensation, such payment can be agreed upon in each individual case. TIGER Drylac U.S.A., Inc., 3855 Swenson Avenue, St Charles, IL 60174, U.S.A. TIGER Drylac Canada Inc., 110 Southgate Drive, Guelph, ON N1G 4P5, Canada TIGER Drylac México S.A. de C.V., Circuito Exportación 212, Parque Industrial Tres Naciones, San Luis Potosí, SLP, C.P , México USA and Canada: T , F Mexico: T , F USA: office.us@tiger-coatings.us Canada: office.ca@tiger-coatings.com Mexico: tigermexico@tiger-coatings.com Certified according to ISO 9001 and ISO 14001

2 4. ORDER CONFIRMATION 4.1 Where orders are placed via facsimile, the facsimile copy of the order containing an order confirmation shall be returned to TIGER by or facsimile. Where orders are placed via , the order shall be confirmed by a response to which the TIGER order has been attached. 4.2 An alternative acceptance (deviation of acceptance) shall be deemed to be a new offer and requires written confirmation by TIGER. 4.3 If the supplier is not willing to accept a TIGER order, the supplier shall notify TIGER about this fact immediately and not later than (48) hours after the receipt of the order. TIGER must receive such notification in order for it to take effect. The supplier is liable for any breach of this obligation, even in cases of slight negligence, for any damage caused to TIGER, including loss of profit. 5. DELIVERY, RECEIPT, ACCEPTANCE 5.1 Annually, the supplier has to announce in writing the replacement time for every individual product, i.e. the time from when the TIGER order was received by the supplier until the time, the ordered product was delivered to and received by TIGER. This delivery term is mandatory and must be complied with by the supplier otherwise TIGER shall charge a penalty of one percent (1%) of the order value for every day of delivery delay. TIGER shall also charge such a penalty for every day a delivery arrives before the agreed upon date of delivery, however an early delivery of only one day will be excused. 5.2 Unless otherwise stipulated in each individual TIGER order, deliveries shall be made delivered at place ("DAP" Incoterms 2010). The date of delivery or period of delivery mentioned in an order refers to the arrival of the delivery to TIGER at the mentioned place of delivery in the order. If no place of delivery is mentioned in the order, the TIGER plant where the order is issued from, shall be the place of delivery. TIGER is not obliged to accept delivered goods prior to the agreed upon delivery date. Unless otherwise agreed upon expressly and in writing, the supplier shall not be entitled to make partial deliveries or advance deliveries. In case of early delivery, the payment term shall only begin to run from the agreed upon date of delivery or from the beginning of the agreed upon period of delivery. 5.3 As soon as the supplier becomes aware that a timely delivery will not be possible or only partially possible, the supplier shall inform TIGER immediately, stating the reasons for such delay and its prospective duration. In case of delayed delivery, even if the supplier has fulfilled its obligation to notify TIGER about the delay, TIGER shall have the right to step back from the contract or to insist on the delivery. If TIGER insists on the delivery, section 5.1 of these Purchase Conditions shall apply. TIGER shall also be entitled to find a replacement elsewhere at the supplier s expense. In any case, TIGER s claims, including without limitation claims for damages, shall remain unaffected. 5.4 Receipt of goods shall only be possible on working days, from Monday through Thursday from 7:00 am to 14:00 pm and Friday from 07:00 to 11:00 am. 5.5 A delivery (i.e. every carton, container or box) shall have the proper accompanying documents attached, containing the complete order number, the delivery address, the name of the supplier, the TIGER item number, the description of the delivered goods and the quantity. A delivery without proper accompanying documents will not be considered as fulfilment of the order and will therefore not be accepted, but rather at TIGER s discretion, be either stored or returned at the supplier s risk and expense. Deliveries shall be properly packed and dispatched in accordance with the relevant shipment instructions by TIGER, if any. Any damage resulting from the non-compliance with these provisions shall be borne by the supplier. 5.6 The legally valid acceptance of the delivery and the transfer of perils shall only be effected after inspection and clearing by TIGER s receipt of goods inspection department. Any previous confirmation of delivery or invoice payment shall not constitute acceptance on the part of TIGER, therefore, in such cases, TIGER reserves the right to later refuse delivery. 6. PRICES 6.1 The agreed upon prices are fixed net prices excluding VAT (HST, or other sales taxes), which include all suppliers' expenses in connection with the delivery. Exchange rates risk and currency fluctuations risk, as well as bank charges, shall be borne by the supplier. 6.2 Where prices, terms and conditions are not stipulated in TIGER s order, but are only mentioned at a later date, they shall only be valid and binding if they are expressly accepted by TIGER in writing. Price increases on the part of the supplier are only binding if agreed upon by TIGER. If such an agreement cannot be reached within one week, the price increases will only become effective one month after receipt of a written announcement by TIGER 2 / 5

3 6.3 Fixed prices exclude surcharges due to the increase of wages, material prices or similar and are considered free to the place of delivery. This includes the costs of transport, insurance, packaging, taxes, tolls and duties in connection with the delivery of goods and services. In the exceptional case that TIGER would, under a specific agreement, incur the costs of transport, the supplier shall use the cheapest available shipment. The place of delivery is not affected by this provision. 6.4 Regarding bonuses or rebates agreed upon for the purchase of certain amounts of goods within a certain period of time, TIGER shall be provided a respective bonus or rebate in the form of a bonus credit note before the end of the month following the agreed upon bonus period. 7. INVOICES 7.1 Invoices, irrespective of whether they are attached to the delivery or not, shall be separately sent to TIGER mentioning the supplier s name and address, firm name and address of TIGER, delivery note number, TIGER s and the supplier s Unique Identifier number as well as all order data (number, date, quantity, etc.). Invoices regarding services and installations require the attachment of approved time recordings with the appropriate confirmation by TIGER. North American suppliers shall send one invoice copy and foreign suppliers shall send two invoice copies. Only invoices drawn up in accordance with the above-mentioned criteria will be considered issued as contractually agreed, and shall be processed by TIGER for due payment of the invoiced amount. 7.2 One invoice for several orders is impermissible unless it was expressly agreed upon. TIGER reserves the right to return invoices that do not fully comply with these provisions; in such a case the invoices shall be deemed as not rendered. 8. PAYMENT 8.1 Insofar as no special agreement is made, the term of payment starts with the transfer of goods or the duly delivered service and the presentation of an invoice as specified in Section 7 of these Purchase Conditions. Where invoices do not comply with these provisions or complaints (claims) regarding the goods delivered or services rendered are made, the term of payment will re-start at the time the deficiencies are settled. Until all claims have been settled, TIGER payments shall be retained. 8.2 At TIGER s discretion, payments have to be made either within (14) days subject to a deduction of three percent (3%) allowance or within (60) days net unless otherwise agreed upon in writing, whereas the payment shall be considered to be effected as soon as the transfer order has been placed with the bank in writing or via electronic data transfer or the relevant cheque has been posted. However, payment neither constitutes TIGER s acceptance of the delivery nor a waiver of TIGER s claims arising from the performance of the contract, such as, for instance, performance deficiencies, warranties and/or compensation for damage. 8.3 C.O.D. (cash-on-delivery) parcels will not be accepted unless expressly agreed upon in the order. 8.4 The supplier shall, under no circumstances, be entitled to set-off its obligations vis-à-vis TIGER against any claims it may have vis-à-vis TIGER, except for the expressly agreed mutual clearing of bonus credit notes. 8.5 The assignment of the supplier s receivables vis-à-vis TIGER requires the written consent of TIGER. 8.6 In case of late payment on the part of TIGER, the supplier is entitled to interest payment in the amount of the 3- month. Further claims in this respect, such as, for instance, interest under claims for damages, as well as dunning costs and collecting charges, are excluded. 9. WARRANTY 9.1 The supplier shall be fully liable for the execution of the delivery as agreed upon in the order and for compliance with all relevant statutory provisions and standards, in particular with regard to the regulations applying within the North American Communities. The supplier shall equally be liable with regard to the products or product parts and/or services delivered or processed by the supplier and for those products or product parts and/or services that it has not created itself. The deliveries and services rendered shall have the usually expected and stipulated qualities as well as the qualities mentioned in the directions for use, explanations, folders, advertisements and other information media that are accessible to the general public or to TIGER and shall be suitable for use in accordance with the nature of the transaction and the agreement in question. 9.2 The warranty period shall be two years. It starts with the date of acceptance of the goods in accordance with section 5.6 of these Purchase Conditions. In the case of a hidden defect (Concealed damages/shortages), the warranty period starts from the discovery of such defect. 3 / 5

4 9.3 The supplier is aware of the fact that an inspection of goods (raw materials) prior to processing at TIGER plants is only possible on a random testing basis (random sampling). Possible defects of raw materials/parts will only usually be noticed in the course of processing or controlling of the end product. Therefore the warranty period concerning goods (raw materials) that will be processed by TIGER starts from the processing time of the delivered raw material. 9.4 Regarding the delivery of machines (facilities), the warranty period starts with the date of acceptance of the machines by TIGER; that is the time of signing a positive acceptance protocol. In case of a warranty claim, the supplier ensures its short-term availability to repair any defects. The necessary spare parts as well as the supplier s working time are covered by the warranty. The supplier grants a guarantee for a term of (15) years for machine spare parts. 9.5 If TIGER does not exercise its right to terminate the contract where there is an unauthorized change of sub-supplier for raw materials, the warranty period shall be extended for another (12) months. 9.6 Deliveries and services shall be considered as defective at the time of delivery if the defect is discovered during the warranty period. TIGER shall give notice of the defects that have not been detected at the time of delivery as soon as such defects are discovered, but not later than by the end of the agreed upon warranty period, either verbally or in writing. 9.7 Where defects are discovered, irrespective of their nature and extent, TIGER shall have the right to claim from the supplier, at TIGER s discretion, rescission of the contract, a price reduction or in case of repairable defects repair of the defect by setting an adequate time limit. TIGER shall further be entitled to conduct repairs, or have them carried out by third parties, at the supplier s expense. All costs incurred in connection with the repairs, additional delivery or return of defective goods as well as the respective risks shall be borne by the supplier. The supplier shall be liable for consequential damages resulting from the defect even if it is not at fault. If the supplier fails to repair the defect within the statutory period, TIGER shall be entitled to claim for, at its discretion, either a rescission of the contract or a reduction of the purchase price. In urgent cases or where the supplier tardily repairs the defects, TIGER shall be entitled, without setting a deadline, to have the repairs effected at the supplier s expense (substituted performance). 9.8 The supplier shall, on its own accord, attach to the delivered goods any storage and operating instructions as well as safety and endangerment instructions and, if necessary, expressly point out any further required measures in connection with the handling of the delivered goods. 9.9 The supplier shall also be liable for the completeness and correctness of the data or information contained in certificates or test reports. The supplier confirms to be aware of all relevant standards, all laws and regulations as well as all other rules in connection with the delivery or rendering of services Upon request, the supplier shall assign to TIGER the supplier s warranty claims against the supplier s subcontractors or predecessors in title if defects in the delivered goods were caused by such subcontractors or predecessors. Such assignment shall not affect TIGER s warranty claims against the supplier. 10. LIABILITY 10.1 The supplier shall be liable for all damages and their consequences thereof Should TIGER be unable to fulfil its contractual obligations due to the supplier s failures to supply, the supplier shall indemnify and hold TIGER harmless in this respect If, in spite of spot checks carried out before delivery to TIGER s customers, defects are not discovered by TIGER, but only are disclosed to TIGER as a result of TIGER customer complaints, and if TIGER is liable for damages due to such customer complaints, the supplier shall be obliged to indemnify and hold TIGER harmless in this respect The supplier shall indemnify and hold TIGER harmless with respect to all third party claims arising because of the breach of public law regulations or because of national or foreign product liability rules If delayed delivery or other default, not being caused by force majeure, leads to a production deadlock, the supplier will be liable for all TIGER damages and/or costs to avoid such damages, arising from the deadlock, in particular for employment costs of USD (65) per hour and employee At the request of TIGER, the supplier shall, at the time of accepting the order, submit evidence of having effected a third party liability insurance policy for a sufficient amount and corresponding to the extent and the possible consequences of such liability. If the supplier fails to provide such evidence, TIGER shall have the right to cancel the order, in full or in part, without granting a grace period. 11. FORCE MAJEURE 11.1 In case of force majeure such as war, warlike events, natural disasters and interplant strikes, TIGER is - for the period during which the case of force majeure continues - exempted from acceptance obligations and authorized to withdraw from the contract without being held liable for any damages suffered by the supplier. 4 / 5

5 11.2 In cases of force majeure that bars the supplier from fulfilling its obligations, TIGER has to be notified in writing and such force majeure has to be confirmed by the responsible chamber of commerce. For the force majeure period, the contractual obligations shall be deemed to be suspended. 12. PROVIDED SAMPLES Specifications, models as well as other documents and other auxiliary material provided by TIGER shall remain TIGER s intellectual and material property to which TIGER reserves all respective rights, unless otherwise expressly announced. Samples may only be used for the agreed purpose. Without TIGER s consent in writing, such samples shall not be duplicated, nor handed over to third persons or being published and have to be treated as confidential. TIGER samples (precursor material, elements, etc.) are in any case owned by TIGER and shall be returned to TIGER after the respective delivery or service has been effected. If the material is not being returned, TIGER is authorised to charge the appropriate costs. 13. INDUSTRIAL PROPERTY RIGHTS The supplier shall indemnify and hold TIGER harmless with regard to all patent law, copyright and trademark law in connection with the deliveries made by the supplier, particularly in connection with industrial property rights, and the supplier shall guarantee the unrestrained use as well as compensate TIGER for all costs, expenses and other disadvantages resulting from the restricted use of the goods delivered, irrespective of whether the supplier is at fault or not. 14. PLACE OF DELIVERY, APPLICABLE LAW AND PLACE OF JURISIDICTION 14.1 The place of delivery for the goods or services shall be the address set out in the individual order; in case no such address is provided, the place of delivery shall be the TIGER plants in North America Local law at TIGER locations shall apply to all legal relationships to which these Purchase Conditions apply, excluding any conflict of law provisions. The UN Contract for the International Sale of Goods shall not be applicable The place of jurisdiction for all disputes arising in connection with the business relationship between the supplier and TIGER, including without limitation disputes arising out of or in connection with these Purchase Conditions, shall exclusively be the competent court of local plant location having subject-matter jurisdiction. However, TIGER is entitled to file suit against the supplier with any other court having jurisdiction over the supplier, either in the USA, Canada, Mexico or abroad. 07_06 * * * 5 / 5