STANDARD PURCHASE TERMS AND CONDITIONS
1. General Terms
a. The following terms and conditions apply irrespective of the supplier’s terms of sale and delivery, unless otherwise specifically approved by Simatek A/S, CVR no. 37 15 70 31 (hereafter referred to as “Simatek”) in writing. If a written contract has been entered into between Simatek and the supplier, the provisions of the contract shall prevail in case of any discrepancies with these terms and conditions.
b. Only written purchase orders are binding.
c. All written communication regarding purchase orders shall as a minimum state purchase order number, position number and/or project number and contact persons of both parties.
d. If upon receipt of the order by Simatek, the supplier is unable to execute the purchase order, written notice shall be given immediately (and no later than two days from receipt of the purchase order).
e. Purchases by Simatek from suppliers domiciled in Denmark are governed by the Danish Sale of Goods Act (in Danish: Købeloven).
f. Purchases by Simatek from suppliers domiciled outside of Denmark are governed by the Convention on Contracts for the International Sale of Goods (CISG).
g. In case of discrepancies with the said act, as the case may be, the provisions of these terms and conditions shall prevail.
2. Proprietary Right
Simatek’s drawings, specifications, moulds, tools, etc. remain Simatek’s property and may neither be shown nor transferred to unauthorized persons, companies or other legal entities. Nor may they be used for other purposes than agreed with Simatek.
Each party shall keep confidential information about the other party of which they gain knowledge in connection with the sale and purchase. In particular this shall include, but not be limited to, knowledge of commercial terms, prices, methods of production, and protected documents and drawings, which a party can reasonably anticipate to be of a confidential nature. Confidential information shall not include information which (a) is or becomes generally available to the public otherwise than by a breach of an obligation of confidentiality; (b) was already known to the receiving party at the time of disclosure; or (c) is or becomes available to the receiving party from a source other than the disclosing party. The confidentiality obligation shall not prevent a party from disclosing confidential information if required to do so by law or regulatory authorities.
A separate Confidentiality Agreement signed can be required by Simatek.
4. Prices and Terms of Payment
a. Payment terms are current month plus 60 days. The stipulated prices are fixed until delivery and cannot be adjusted.
b. Payment in advance, on account payment, handling fee, fee for packing material and/or packing in general must be agreed in writing prior to submission of the purchase order by Simatek and will otherwise not be accepted by Simatek.
5. Order Confirmation
a. An order confirmation shall be submitted to Simatek’s e-mail address: email@example.com no later than two days within close-of-business from receipt of the purchase order.
b. The supplier is required to inform promptly if he is unable to meet the conditions of the purchase order, however no later than two days from receipt of the purchase order.
c. Simatek shall be bound solely by order confirmations which are issued in accordance with Simatek’s purchase orders. Any deviation from the purchase order must be marked clearly or stressed separately, in writing.
Simatek is bound only by written acceptance of such deviations.
d. Order confirmations shall refer to valid version of Simatek’s Standard Purchase Terms and conditions as stated in purchase orders.
a. If no other terms of delivery have been agreed upon, all goods, hereunder but not limited to materials, equipment, supplies, parts, spare parts, machines and instruments (hereafter jointly referred to as “Goods”) shall be delivered DAP (INCOTERMS 2010) including proper packaging.
b. Delivery has only taken place when all positions, hardware as well as documentation and services, have been delivered to the address(es) as stipulated in the purchase order.
c. Partial deliveries and invoicing are only acceptable against prior agreement in writing.
d. If delivery takes place earlier than required, the period of credit shall begin as of the initially agreed time of delivery.
e. If it is not possible to take delivery of the Goods at the agreed time, the supplier shall provide for storage of same up to 3 months at the supplier’s own account and risk.
7. Inspection and Guarantee
Simatek reserves the right to inspect the quality and quantity of the Goods ordered (alone or together with Simatek’s customers or consultants) at the premises of the supplier or his sup-suppliers. Simatek’s inspection of the Goods does not relieve the supplier from his responsibility for the functionality of the product delivered.
a. Tagging of Goods:
All items shall be tagged by the supplier in accordance with Simatek’s instructions, provided the tagging instructions form part of the purchase order.
b. Shipping marks:
For identification of the items upon delivery, all packages/ boxes/ containers etc. shall prior to shipment be marked in accordance with the specifications of the purchase order.
9. Invoice, Delivery Note and Packing List
a. The invoice shall be forwarded by email to firstname.lastname@example.org upon delivery of the Goods.
b. Invoice, delivery note, and packing list shall contain an exact description and specification of the parts and packages delivered, as well as purchase order number, position number and/or project number.
c. It shall be possible for Simatek to require a preliminary packing list with all necessary measurements for transportation purpose.
a. The supplier shall warrant a proper design and construction of the Goods delivered, a high quality of the materials applied, a correct execution and the suitability of the Goods for the purpose. Furthermore, the supplier shall warrant that all specified services, capacities, and/or characteristics of the delivered Goods are covered by the guarantee. This applies in cases where the supplier has a total or a partial responsibility for the design/construction and the constructual drawings, calculations etc.
b. All supplies are as a minimum covered by a 24 months’ warranty period commencing as of commissioning of the plant for which the Goods are delivered. For construction materials, the warranty is 5 years from handing over of the construction work, however limited to 6 years from the delivery of the materials to Simatek. During the warranty period, the supplier warrants that the Goods supplied are functional and free from defects and deficiencies.
a. The supplier shall immediately inform Simatek in writing in case of circumstances indicating that delivery might be delayed in whole or in part.
b. Any delay shall be deemed important, even if only a small part of the order is delayed. In any case of delay, Simatek shall have the option of cancelling or maintaining the purchase order. If the purchase order is maintained, the purchase price shall as a penalty for the delay be reduced by 1 percent for each day of delay, however by maximum 20 percent of the aggregate purchase price.
c. Unless otherwise expressly agreed upon, Simatek shall – even if Simatek required the purchase order to be maintained in the first place – preserve the right to cancel the purchase order as long as the delay continues. In addition to the penalty for the delay, Simatek shall be entitled to claim full compensation from the supplier for any loss caused by the delay including any loss due to non-fulfilment of Simatek’s’ delivery obligations towards Simatek’s end customers and due to interruption of operation.
a. In case of defects, Simatek shall, in addition to full damages, be entitled to cancel the purchase order or to demand remedial action, including additional or replacement Goods, or to require a proportional reduction of the purchase price. Simatek shall be entitled to claim full compensation for any loss caused by defects, including any loss due to non-fulfilment of Simatek’s delivery obligations and interruption of operation.
13. Spare Parts
a. For machines, instruments, etc. the supplier is obligated to supply spare parts, or to provide equivalent sources of supply, for 10 years from the time of delivery.
Goods being Simatek’s property which are to be stored at the supplier’s premises, cf. clause 6.e, shall:
a. Be individualized according to Simatek’s marking instructions.
b. Be insured against fire, theft, and water damage. If the supplier’s own insurance does not cover in full, information shall immediately be given to Simatek.
15. Product Liability
The supplier shall indemnify Simatek for any claim imposed on Simatek by a third party. The supplier is obligated to take out a valid product liability insurance to this effect, and such insurance cover must be presented at request.
16. Liability related to infringement of intellectual property
The supplier is obligated to keep Simatek clear of any claim imposed upon Simatek by a third party for claimed infringement of patents, licenses, trade marks, copyright, know-how or other intellectual rights. If Simatek or Simatek’s customers consequently suffer a loss, Simatek and/or Simatek’s customers are entitled to full compensation for such losses.
Any publication of goods delivered through Simatek is only permitted against a prior written approval from Simatek.
18. Force Majeure
Force majeure shall mean any unforeseen event which is beyond the reasonable control of the parties or any foreseeable occurrence the consequences of which may not reasonably be avoided that arise after the acceptance of the order and which prevents performance of the agreement, in whole or in part, by either party. Force majeure event can be, but is not limited to any of following circumstances as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts. If a third party fails to meet the obligations it has accepted in relation to the supplier or fails to meet such obligations in good time or in an appropriate fashion, this shall not be deemed to be force majeure affecting the supplier.
Force majeure shall cause the suspension of the obligations of Simatek and the supplier under the agreement for the duration of the delay caused by the event of force majeure and the period of performance shall be automatically extended without any penalty for an equal period.
The supplier shall notify Simatek of the occurrence of a case of force majeure explaining its reasons immediately by telephone or otherwise and confirmed in writing on the day on which it occurs and shall inform Simatek of further developments in the same way, failing which it shall loose the right to invoke the occurrence of force majeure, without prejudice to the conditions respectively laid down in clause 12.a. The supplier shall make all reasonable efforts to eliminate or at least minimize the effects of this force majeure.
19. Governing law and dispute resolution
Any dispute which cannot be settled by the parties by mutual consent shall be governed by and construed in accordance with Danish law (the Danish Sale of Goods Act or CISG as the case may be), excluding its conflict of law rules and, in Simatek’s sole and absolute discretion, either (i) finally settled by arbitration in Copenhagen in accordance with the rules of Danish Institute of Arbitration or (ii) by the Maritime and Commercial Court of Copenhagen as first instance. Proceedings shall be in Danish and/or English language. Irrespective of any dispute between the parties, the supplier is obligated to proceed the delivery.
Prior to initiating litigation, the Parties will make a good faith attempt to resolve their dispute through direct negotiation by escalating any dispute up to a member of senior level management of each Party with authority to settle the dispute and such members of senior management will meet within 10 Business Days of a written request from one Party to the other. However, following any unsuccessful negotiations, either Party will be free to commence court proceedings.