Metso's general purchase conditions
GENERAL PURCHASE CONDITIONS GPC 2011
1. Applicability of General Conditions
1.1 These General Conditions shall be applied in purchases of different units of Metso Group provided that the Parties to the transactions, in the Purchase Contract governing such transactions, have agreed thereon in writing or otherwise.
1.2 Any amendment or modification of these General Conditions shall not become binding unless agreed upon in writing in the Purchase Contract between the Parties governing the individual transaction. The Parties expressly reject any incorporation attempt of Supplier’s own or industry-wide or other general terms and conditions and whether such attempt is made in relation to offering, correspondence, website, order acceptance, counter party compliance inquiries, invoicing or other means.
2.1 Party shall be deemed to mean the Purchaser or the Supplier.
2.2 Purchase Contract shall be deemed to mean either a contractual instrument, including any attachments thereto, specifying the terms and conditions of transactions executed by the Parties and, as applicable, any purchase order issued under the contractual instrument, or if there is no such contractual instrument, the purchase orders issued by the Purchaser and accepted without modifications by the Supplier or the sales offers issued by the Supplier and accepted without modifications by the Purchaser. For the sake of clarity, the Purchase Contract may refer to one delivery or several deliveries of goods and also to repetitive purchase orders.
2.3 Goods shall be deemed to mean materials, castings and forgings (even as rough or ready-machined), mechanical, electrical and electronic components (even as subassemblies or assemblies), accessories or sub-supplies including any technical documentation relating thereto, specified in the Purchase Contract, which constitute the objects of the transactions and which are to be delivered by the Supplier to the Purchaser.
3. Sales Material and Documentation
3.1 Any information or data contained in any technical or commercial sales material or documentation used, presented or conveyed by either Party during the negotiations of the Purchase Contract shall become binding on the Parties only to the extent that such material or documentation is attached to or made part of the Purchase Contract.
4. Technical Standards; Health, Safety, Environmental and Other Requirements
4.1 The technical standards, quality and safety requirements expressly specified in the Purchase Contract shall be applied in the deliveries as well as in the design (if applicable), manufacture, testing and inspection of the Goods specified by the Purchase Contract. Should the Purchase Contract fail to specify applicable technical standards or quality requirements, the standards and requirements commonly used in the Supplier’s branch of industry shall apply.
4.2 The Supplier shall take care of necessary sorting, recovery, treatment and other handling of electronic, electrical and other waste, chemicals and hazardous substances, as well as take care of necessary registration and reporting obligations in these respects.
4.3 The Supplier shall comply with Purchaser’s Health, Safety (including both product safety, workplace safety and employee safety) and Environmental programs and requirements as incorporated into the Purchase Contract with respect to the Goods and Supplier’s implementation of the Purchase Contract.
5. Technical Documentation; Intellectual and Industrial Property Rights
5.1 The scope of deliveries shall be deemed to include and the Supplier shall without any additional cost to the Purchaser, unless otherwise agreed in writing, deliver to the Purchaser, any technical documentation specified in the Purchase Contract. Such technical documentation shall also include specified (or, if not specified, ordinary) training, operation, maintenance and service manuals.
5.2 The technical documentation specified in Clause 5.1 above shall, unless otherwise agreed in the Purchase Contract, be delivered in six (6) bound or otherwise suitably composed copies, of which one (1) copy shall be in digital format. If no documentation language is specified by the Purchase Contract, the technical documentation material shall be delivered in English.
5.3 Any commercial or technical documentation, drawings etc. other than documentation specified in Clauses 5.1-5.2 above, prepared by either Party and disclosed or made available to the other Party before or after the date of entering into force of the Purchase Contract, shall remain the property of the disclosing Party and the receiving Party shall not, without the prior written consent of the disclosing Party, be entitled to disclose or make available such documentation to any third party. Neither Party shall be entitled to use any confidential documentation, as defined in this Clause 5.3, received from the other Party for any purpose other than the implementation of the Purchase Contract.
5.4 The Supplier shall up to the date of expiry of the warranty period, as defined in Clause 14 hereunder, be responsible to the Purchaser for any errors or defects in technical documentation delivered to the Purchaser as well as for any direct damage to the Purchaser caused by such errors or defects. In addition to the above liability for damages to the Purchaser, the Supplier shall, without delay and without cost to the Purchaser, correct and rectify any errors or defects in the delivered documentation.
5.5 This Purchase Contract does not affect the ownership or other rights to the Parties’ existing or background intellectual or industrial property rights (such as inventions, patents, trademarks, utility models designs, specifications, computer programs, drawings, circuit layouts, documentation, models, prototypes, technologies, techniques,, copyrights or trade secrets).
Unless otherwise expressly agreed upon elsewhere in this Purchase Contract or separately in writing by the Parties, all inventions, discoveries, concepts, ideas, developments, results, technical documents, copyrights and other intellectual and industrial property rights developed, reduced to practice or otherwise created or provided in the implementation of this Purchase Contract by or on behalf of the Supplier or the Purchaser (the “Developments”) shall be vested in the Purchaser and shall become the Purchaser’s property as and when created. The Supplier hereby assigns, and agrees to assign or cause the assignment of, without further compensation, to the Purchaser, all right, title and interest in and to all Developments. The Supplier shall execute or cause the execution of all documents reasonably required by the Purchaser to protect the Purchaser’s rights.
However, in cases where the Goods and Services are of the Supplier’s standard design and offering and where the Supplier has the copyright on the Engineering Material and Goods to be delivered under the Purchase Contract, the Developments made by or on behalf of the Supplier based upon such Supplier’s own design, copyright or otherwise the Supplier’s own intellectual and industrial property rights, shall remain with the Supplier.
In the event or to the extent the Purchaser does not acquire the right, title and interest in any Engineering Material, Goods or Services or related Developments, the Supplier hereby grants the Purchaser, his Customers, end-users and his other business partners non-exclusive, irrevocable, transferable, perpetual, world-wide and royalty-free license to make, use, sell, sub-license, export and import all the Developments, as well as to otherwise use the Supplier’s background and existing intellectual and industrial property rights, to the extent necessary to enable the Purchaser, his Customers, end-users and other business partners to exercise such rights in relation to the Goods (or Services, if any) specified in the Purchase Contract (such as to operate and have operated, to repair and have repaired, to maintain and service and have maintained and serviced, and to reconstruct and have reconstructed the Goods in relation to the Purchaser’s manufacturing, delivery and other business processes, and to prepare derivative works of authorship). The Supplier shall be responsible for that the sub-contractors and vendors used by him will transfer the corresponding rights, either through the Supplier or directly, to the Purchaser (and to other Metso group entities).
If any Goods or Services are supplied according to, by means of, or with the Purchaser’s intellectual or industrial property rights, or with the Developments, the Supplier agrees that the same or similar Goods or Services will not be furnished to any third party, without the Purchaser’s written consent. The Supplier shall keep the Purchaser’s non-public intellectual and industrial property confidential. Upon completion of the delivery/deliveries under this Purchase Contract, the Supplier shall provide to the Purchaser all Purchaser’s intellectual and industrial property and Developments in his possession or control.
The Supplier shall not disclose, reproduce, use or otherwise deal with the Purchaser’s intellectual and industrial property rights, or allow any other person to do the same, for any purpose other than to provide the Goods (or Services) pursuant to this Purchase Contract.
6. Tests and Inspections
6.1 The tests and inspections to be performed in regard to the Goods prior to deliveries, as well as the mode of performance of such tests and inspections, shall be specified in the Purchase Contract. If the Purchase Contract contains no provisions regarding testing and inspection of the Goods prior to deliveries the Supplier shall nevertheless be obligated, without any additional cost to the Purchaser, to perform and conduct any tests and inspections of the Goods as well as to obtain any inspection or test certificates required by the laws and regulations in the country of manufacture prior to the deliveries of the Goods. The tests and inspections to be performed by the Supplier without any additional cost to the Purchaser, as well as such special tests and inspections which can be invoiced by the Supplier, shall be defined in the Purchase Contract.
6.2 The Purchaser or his appointed representative shall, prior to deliveries of the Goods, be entitled to perform and conduct tests and inspections of the Goods and technical documenta¬tion material. Such tests and inspections by the Purchaser are to be performed in a manner which does not obstruct or unreasonably disturb the manufacturing activities of the Supplier. The Purchaser or his appointed representative shall, in addition, be entitled to be present in any test or inspection of the Goods or the technical documentation material conducted by the Supplier or any inspection authority in accordance with the Purchase Contract. The Supplier shall, not less than ten (10) days in advance, notify the Purchaser in writing of any such tests or inspections to be performed. Unless otherwise agreed the absence of the Purchaser or his representative from any test or inspection notified by the Supplier shall not prevent the Supplier from performing the test or inspection.
6.3 Tests and inspections of the Goods or technical documentation shall, unless otherwise agreed in the Purchase Contract, be performed at the place of manufacture of the Goods during normal working hours of the Supplier and in accordance with the practices applied in the respective branch of industry. Records must be kept on all tests and inspections of the Goods stating the time, purpose, object, results and findings as well as the conductor of the test or inspection.
6.4 The Supplier shall, unless otherwise agreed in the Purchase Contract, bear all costs arising in connection with any tests and inspections at the place of manufacture of the Goods. The Purchaser shall, however, bear any travel, lodging or other expenses of his represen¬ta¬tive in connection with such tests and inspections.
6.5 If the Goods do not meet the requirements specified in the Purchase Contract during the tests and inspections or if any other defects exist, the Supplier shall be responsible for all expenses incurred by the Purchaser on account of eventual renewed tests and inspections.
6.6 No approved tests or inspections shall be deemed to relieve the Supplier of his obligation to supply the Goods in accordance with the Purchase Contract. Neither the approved tests nor inspections relieve the Supplier any of other obligations of the Purchase Contract.
7. Delivery Times
7.1 The delivery times of the Goods are specified in the Purchase Contract or case-by-case in the purchase orders of the Purchaser.
7.2 It is strongly emphasized by the Purchaser that the delivery times must be followed punctually by the Supplier.
7.3 If during the delivery period it becomes apparent or should become apparent to the Supplier that the Supplier will be unable to deliver the Goods within the agreed delivery times, the Supplier shall be obligated to notify the Purchaser without delay in writing of the foreseeable delays in deliveries regardless of the cause of such delays. The notice of the Supplier shall specify the cause of the delays as well as the estimated delivery times of the Goods. Should the Supplier fail to notify the Purchaser of any foreseeable delay in deliveries attributable to the Supplier, such failure shall be regarded as essential breach on the part of the Supplier entitling the Purchaser to claim damages under Clause 9.3 hereof.
7.4 If during the delivery period it becomes apparent or should become apparent to the Purchaser that the Purchaser will be unable to receive the Goods on the dates of expiry of the agreed delivery times, the Purchaser shall be obligated to notify the Supplier without delay in writing of the foreseeable delays attributable to the Purchaser as well as of the estimated times of reception of the Goods. If the reception of the Goods is delayed due to causes attributable to the Purchaser, the Purchaser shall, regardless of such delays, be obligated to pay the price of the Goods in accordance with the agreed terms of payment. Upon request of the Purchaser, the Supplier shall arrange suitable storage for the Goods at the risk and expense of the Purchaser
7.5 The Supplier shall not be entitled to deliver the Goods prior to the delivery times specified in the Purchase Contract without the Purchaser’s prior written consent.
8. Completion of Delivery - Term of Delivery
8.1 The Supplier shall be deemed to have completed the deliveries when the Goods, including any technical documentation related thereto, specified by the Purchase Contract have been fully delivered in accordance with the term of delivery specified in the Purchase Contract. The completion of the delivery as aforesaid or the making of any payment by the Purchaser attached to such completion shall not release the Supplier from any responsibilities regarding current and subsequent defects in the Goods.
8.2 The Purchaser shall without delay notify the Supplier of any defects in the Goods and the Supplier shall, upon receipt of such notification, without delay and without cost to the Purchaser, remedy such defects. Should the Supplier fail to remedy any defect in the Goods without delay or within a reasonable time period specified in the notification of the Purchaser, the Purchaser shall be entitled to remedy the defect at the cost of the Supplier or, if the defect is significant, to cancel the Purchaser Contract entirely or in part.
8.3 The term of delivery shall be FCA - free carrier at the place of manufacture of the Goods or a specified INCOTERMS term as set forth in the Purchase Contract. The term of delivery shall be interpreted in accordance with the last edition of INCOTERMS valid on the date of the Purchase Contract. When the Supplier delivers the Goods directly to the Purchaser’s customer, the Supplier shall prepare the delivery documentation by using the document forms given (if given) by the Purchaser on a case-by-case basis.
8.4 The Purchaser has the right to change the term of delivery, provided that he informs the Supplier in good time of the change of the delivery term. The prices will be increased or decreased accordingly.
8.5 The Supplier shall have an obligation to suspend his performance for a period of up to ninety (90) days upon a notice from the Purchaser. The Supplier shall take all reasonable steps to minimize costs during such suspension. The Supplier shall store the work in progress, raw materials and finished Goods inventory properly during the suspension. The Supplier shall keep the Purchaser fully informed of the status of the Goods and the contractual performance. The Supplier shall comply with the instructions given by the Purchaser. An equitable adjustment shall be made to the delivery time(s) and other contractual Clauses which have been affected by the suspension. The prices shall remain unaffected during the suspension. The Supplier shall have an obligation to commence work as instructed by the Purchaser whether or not the Parties have agreed upon the adjustment. The Purchaser’s right to suspend shall not affect the Clauses regarding cancellation or termination of the Purchase Contract.
9. Delay in Delivery
9.1 Should the deliveries of the Goods be delayed due to any cause other than Force Majeure, as specified in Clause 18 hereunder, or circumstances attributable to the Purchaser, the Supplier shall, if no separate agreement is specified in the Purchase Contract, pay the Purchaser a penalty amounting to 2 % of the value of the deliveries or the delivery lots specified by the Purchaser for each commencing week of delay not, however, exceeding 10 % of the value of such deliveries or delivery lots.
9.2 The technical documentation forms an integral part of the deliveries of the Goods, which are regarded as completed only after the deliveries of technical documentation specified by the Purchase Contract.
9.3 In addition to the penalty specified in Clause 9.1, the Supplier shall be responsible for the damages resulting from the delay in the following cases: (i) in the event that the maximum amount of penalty has become payable or (ii) the delay is attributable to gross negligence or willfulness or essential breach on the part of the Supplier.
9.4 Any amount of penalty on account of delay in delivery shall become due on demand and the Purchaser shall be entitled to deduct any amount of penalty due from any unpaid invoice. Claims for payment of penalty due to delays in deliveries shall be made within twelve (12) months from the actual dates of such deliveries, after which period the right to present such claims shall expire.
9.5 If the deliveries are delayed due to circumstances of Force Majeure as specified in Clause 18 hereunder or due to causes attributable to the Purchaser, the Purchaser shall not be entitled to claim penalties and the delivery times shall be extended by a period corresponding to the duration of such delays.
9.6 Should the deliveries be delayed or are likely to be delayed due to reasons attributable to the Supplier, the Supplier shall carry out any overtime work necessary and/or move to shift work and undertake all other additional support at his own expense in order to meet the agreed delivery schedules.
10. Prices and Terms of Payment
10.1 The Purchaser shall pay the deliveries specified by the Purchase Contract in accordance with the terms of payment stipulated therein against the invoices of the Supplier. Unless otherwise agreed in the Purchase Contract, the prices specified in the Purchase Contract shall be deemed to constitute the fixed prices, excluding any value-added tax (VAT), payable by the Purchaser to the Supplier, and shall constitute full compensation for fulfillment by the Supplier of any and all contractual obligations relating to the deliveries of the Goods. The Supplier shall not be entitled to receive any additional compensation unless otherwise specified in the Purchase Contract or separately agreed in writing between the Parties.
10.2 Unless other terms of payment have been agreed upon in the Purchase Contract, the Purchaser shall pay the deliveries of the Goods against invoices within sixty (60) days from the dates of completion of the deliveries in accordance with the Purchase Contract.
10.3 If any payment becomes overdue, but not due to the Supplier, the Purchaser shall pay to the Supplier default interest, the rate of which is twelve months’ Euribor valid on the date of the due date plus six (6) %. If, however, the late payment interest rate under the applicable law is lower than twelve months’ Euribor plus six (6) %, then the interest rate under the applicable law will apply.
10.4 If the transactions specified in the Purchase Contract are subject to value-added tax (VAT), the Purchaser shall pay the value-added tax in accordance with the fiscal regulations applicable to the transactions. The amounts of value-added tax payable on the prices of deliveries shall be stated on the invoices of the Supplier.
11. Transfer of Title - Risk of Goods
11.1 Unless otherwise agreed in the Purchase Contract, the title to the Goods, or any part thereof, shall pass from the Supplier to the Purchaser upon deliveries in accordance with the term of delivery specified by the Purchase Contract. The risk of the Goods shall pass from the Supplier to the Purchaser in accordance with the term of delivery specified by the Purchase Contract.
11.2 If the Purchaser is unable to receive the Goods, or any part thereof, on the agreed dates of deliveries, the risk of the Goods, or any non-received part thereof, shall pass to the Purchaser when the Goods, or any part thereof, have been appropriately stored by the Supplier on behalf of the Purchaser.
11.3 The risk of the Purchaser's property which is in the possession of the Supplier is to be borne by the Supplier.
12.1 The Supplier shall not during the delivery times, without the written consent of the Purchaser, be entitled to make modifica¬tions or changes to the Goods specified by the Purchase Contract.
12.2 The Supplier shall, without any additional cost to the Purchaser, make such minor modifications to the Goods requested by the Purchaser which do not affect the prices, delivery times or guarantee obligations of the Supplier. Any request by the Purchaser for such modifications shall be made in writing.
12.3 Any modifications of or additions to the Goods during the delivery times, other than the modifica¬tions specified in Clause 12.2 above, shall in each case be subject to a separate agreement in writing between the Parties.
13.1 The Supplier warrants and shall be responsible for ensuring that the Goods delivered are in accordance with the Purchase Contract and that they meet the quality and performance standards specified by the Purchase Contract (Quality Warranty, Performance Warranty).
13.2 The Supplier warrants that the Goods delivered are free from defects (within agreed tolerances, if any) and shall be responsible for any defect in the Goods due to faulty design (unless the design is the responsibility of the Purchaser), material or workmanship of the Goods (Mechanical Warranty).
13.3 The responsibility of the Supplier under the warranties specified in Clauses 13.1 and 13.2 above (Quality Warranty/Mechanical Warranty) shall be limited to defects in the Goods which occur during the warranty period or which can be satisfactorily demonstrated to have been in the Goods during the warranty period. Any claims by the Purchaser based on the above warranties by the Supplier are to be presented not later than within six (6) months from the date of expiry of the warranty period.
14. Warranty Period
14.1 The warranty period, as referred to in Clause 13 above, shall be twenty-four (24) months from the date of takeover, and not longer than thirty-six (36) months from the date of completed delivery of the Goods. The date of takeover means the date when the customer or end-user (as the case may be) of the products delivered by the Purchaser has accepted the Purchaser's delivery to him. Upon request by the Supplier, the Purchaser shall inform the Supplier in writing of the date of commencement of the warranty period.
14.2 If a defect in the Goods within the warranty undertaking of the Supplier occurs which is to be remedied by the Supplier in accordance with the Purchase Contract, then a fresh warranty period of twenty-four (24) months shall commence in regard to the Goods, or any part thereof, repaired or replaced by the Supplier on the date of acceptance of such repair or replacement by the Purchaser. The warranty period for any Goods not subjected to repair or replacement by the Supplier shall be extended only by such a period during which such Goods have been unservice-able.
14.3 The warranty period shall in all respects expire not later than forty-eight (48) months from the date of commencement of the original warranty period as specified in Clause 14.1 above.
14.4 The Supplier warrants that the Purchaser, as well as Customers and end-users, will have available all necessary spare parts, wear parts and technical support with respect to the Goods at least 10 years after the warranty period.
15. Notification of Defects and Remedies
15.1 If a defect in the Goods occurs within the warranty undertaking of the Supplier, the Purchaser shall without delay notify the Supplier of such defect (Notice of defect). In his Notice of defect the Purchaser shall set a reasonable deadline for the Supplier to complete any remedies of the defect. If the Notice of defect by the Purchaser fails to stipulate a deadline for the remedies or if the Supplier is unable to remedy the defect within the deadline stipulated by the Notice of defect, the Supplier shall within seven (7) days from the date of receipt of the Notice of defect inform the Purchaser of the time by which the defect will be remedied by the Supplier. Notices of defect by the Purchaser and notices of remedy by the Supplier shall be made in writing, by facsimile or by email.
15.2 The Supplier shall, without delay and within the time period construed in accordance with Clause 15.1 above, at his own discretion repair or replace any defective Goods. The Supplier is responsible for ensuring that any repair or replacement of the Goods is performed with adequate skill and expertise.
15.3 The Supplier shall bear all costs and expenses relating to the repair or replacement of defective Goods including, but not limited to, any design, engineering, manufacturing, transportation, dismantling and installation costs as well as any travel, lodging or other personnel expenses and any costs of the Purchaser's or his sub-contractor’s lost machining, repairing, dismantling and installation hours.
15.4 Any Goods replaced shall, upon completion and acceptance of the remedy, be the property of the Supplier and shall be made available to the Supplier at the place of location of the Goods.
15.5 Should the Supplier fail to remedy any defect in the Goods without delay and within the time period construed in accordance with Clause 15.1 above, the Purchaser shall be entitled in emergency situations to remedy such defect at the cost of the Supplier. Any repair or replacement of defective Goods performed by the Purchaser in accordance herewith shall not release the Supplier from any responsibility under the warranty undertaking of the Supplier in regard to repaired or replaced Goods provided that such repair or replacement has been performed in accordance with the instructions of the Supplier or otherwise with adequate skill and expertise. Minor defects, the remedy of which cannot be delayed and which does not require special expertise possessed by the Supplier, may be remedied forthwith by the Purchaser at the cost of the Supplier provided that the Purchaser without delay informs the Supplier in writing of the defect as well as the remedy.
15.6 The responsibility of the Supplier hereunder shall not extend to defects in the Goods, which are caused by faulty machining or other further processing or faulty installation of the Goods; failure to operate or maintain the Goods in accordance with the operation or maintenance manuals delivered by the Supplier; modifications or alterations implemented after the deliveries without the prior consent of the Supplier; or by normal wear and tear. Furthermore, the responsibility of the Supplier shall not extend to defects in the Goods caused by materials or structures prescribed or provided by the Purchaser.
15.7 If the defect in the Goods is significant and the Supplier has failed to remedy the defect within the time period construed in accordance with Clause 15.1 above or if the defect or similar defects, despite measures taken by the Supplier, have proved to be repetitive (epidemic fault) and the Goods may on justifiable grounds be regarded as unfit for the purpose specified by the Purchase Contract, then the Purchaser shall be entitled to cancel the Purchase Contract entirely or in part.
16.1 The Supplier shall be liable for any damage to the Goods up to the transfer of the risk of the Goods. Upon transfer of the risk of the Goods to the Purchaser, the liability of the Supplier shall be limited to damage caused by acts or omissions of the Supplier relating to the Goods.
16.2 The Supplier shall unless otherwise agreed in the Purchase Contract be responsible to the Purchaser for any damage to any property of the Purchaser attributable to breach of contract, willful acts, negligence, or lack of skill by the Supplier.
16.3 Neither Party shall be responsible to the other for any consequential damage including but not limited to loss of production, loss of profit, or other indirect damage provided, that such damage is not caused by willful acts or gross negligence of a Party.
16.4 The Supplier shall be liable for product liability cases, i.e. accidents and resulting property damages and personal injuries caused by any defect in the Goods or the acts or omissions of the Supplier (including the Supplier’s employees, sub-contractors and other representatives). The Supplier shall indemnify and hold the Purchaser (and any of his representatives) harmless in these respects. The Purchaser shall without delay notify the Supplier of any product liability claim made against the Purchaser by a third party.
16.5 The Supplier shall effect and maintain sufficient insurance protection including, but not necessarily limited to, insurance of property, liability insurance, and protection of his personnel in case of industrial injury. The liability insurance shall cover a minimum amount of EUR two (2) million against every single case of injury (on an occurrence basis).
16.6 The Supplier shall, at the request of the Purchaser, either present or within fourteen (14) days deliver to the Purchaser a copy of the insurance certificate or other proof that adequate insurance exists.
16.7 The conditions above concerning insurance do not have an effect on the Supplier’s liabilities or compensation responsibilities stated in the Purchase Contract or elsewhere in these General Conditions.
17. Infringement of Immaterial Rights
17.1 The Supplier bears the responsibility for ensuring that the Goods, or the use or transfer thereof, shall not infringe any immaterial rights (industrial property rights or intellectual property rights) of any third party (including, without limitation, any patent, trademark, industrial design, utility model, copyright or license right or trade secret). If claims based on infringement of immaterial rights are made by a third party against the Purchaser (or other Metso Group entities or their Customers or end-users of the Goods), the Supplier shall be obligated to indemnify, defend and hold the Purchaser (or other Metso Group entities or their Customers or end-users of the Goods) harmless against all damages, costs and expenses arising out of or in connection with such claim or infringement. The Purchaser shall, however, without undue delay notify the Supplier of any such claim and allow the Supplier to either independently plead or to intervene in the proceedings regarding such infringement claim.
17.2 Should the Goods delivered be found to infringe the immaterial rights of a third party, the Supplier shall, without cost to the Purchaser, modify the Goods to be non-infringing or shall obtain and maintain such license and rights from the third party as are required for the unrestricted, continuous use of the Goods as specified in the Purchase Contract.
18. Force Majeure
18.1 Neither Party shall be responsible to the other for any delay or failure to fulfill any obligation under the Purchase Contract or for any damage caused thereby in the event of such delay, failure or damage being caused by cases of Force Majeure.
18.2 Force Majeure shall be constituted by any circumstance arising after the entering into force of the Purchase Contract which was not in the knowledge of the Parties before the signing of the Purchase Contract, which is beyond the control of the respective Party, and which impedes or creates unreasonable hardship for the implementation of the Purchase Contract.
18.3 In order to effectively invoke Force Majeure, a Party shall notify the other Party in writing of the commencement of any circumstance constituting Force Majeure as well as of the cessation thereof.
19.1 The Purchaser presumes that the Supplier shall take a responsible attitude towards environmental protection. The Supplier shall comply with environmental legislation and other regulations and shall identify the significant environmental impacts of his activities and products. By signing the Purchase Contract the Supplier confirms his awareness of the Purchaser’s Environmental Policy and the ICC Business Charter for Sustainable Development which the Supplier is committed to, and furthermore confirms that his own operations shall not be in contradiction with these principles.
20. Code of Conduct
20.1 By signing the Purchase Contract the Supplier confirms his awareness of the Code of Conduct published by the Purchaser and states that no conflict between these and the Supplier’s own principles exists. In addition the Supplier confirms that his business practices are not in contradiction with the business principles stated in the United Nations Global Compact Initiative, which the Purchaser supports as a signatory. The Supplier shall support and respect the United Nations’ Universal Declaration of Human Rights and the core rights stated in the ILO Convention as adopted by national law and according to best local practices. The Supplier (including his sub-contractors) shall refrain in all circumstances from the use of child or forced labor. The Supplier shall undertake to follow ethical business practices and in so doing to refrain from the use of bribery.
21.1 Either Party shall be entitled to cancel the Purchase Contract forthwith in the event that the other Party is declared bankrupt, files for bankruptcy, enters into liquidation, enters into an agreement with his creditors, or becomes insolvent. Either Party shall furthermore be entitled to cancel the Purchase Contract if the other Party is in essential breach of the Purchase Contract and fails to remedy such breach within thirty (30) days from receipt of written notice by the injured Party to do so.
21.2 Each Party shall be entitled to cancel the Purchase Contract or part of it if because of Force Majeure the implementation of the Purchase Contract becomes impossible or is delayed or is likely to be delayed for more than two (2) months.
21.3 The Purchaser shall be entitled to cancel the Purchase Contract if deliveries of the Goods are delayed or are likely to be delayed for any reason other than Force Majeure or reasons attributable to the Purchaser for a period exceeding the period specified in Clause 9 above, which entitles the Purchaser to any maximum amount of penalty due to delay. The Purchaser shall furthermore be entitled to cancel the Purchase Contract in the event of significant, continuous defects (epidemic fault) in the Goods as specified in Clause 15.7 above.
22. Applicable Law - Settlement of Disputes
22.1 The Purchase Contract shall be governed by, construed and interpreted in accordance with the laws of Finland excluding (1) its choice of law provisions and (2) the United Nations’ Convention for the International Sale of Goods.
22.2 Any disputes arising out of or in connection with the Purchase Contract shall in the first place be solved by the Parties in common negotiations. If the Parties are not able to find an amicable solution within three (3) months from the first written request, then the dispute shall be finally settled by arbitration in accordance with the law of Finland governing such arbitration procedure in force on the date of commencement of such procedure. The Parties shall jointly appoint one (1) arbitrator. Should the Parties fail to appoint the arbitrator, then such arbitrator shall be appointed by Arbitration Committee of the Central Chamber of Commerce of Finland. The arbitration shall take place in Helsinki, Finland. The language to be used in the arbitration procedure shall be English.
23. General Provisions
23.1 The Supplier shall, prior to engaging a sub-contractor for the deliveries, obtain the approval of the Purchaser of such sub-contractor, and the Supplier undertakes, in regard to the deliveries of the Goods, to engage and use only sub-contrac¬tors approved in advance by the Purchaser. The Purchaser shall be entitled to decline the approval of any sub-contractor proposed by the Supplier, if it may justifiably be assumed that such sub-contractor is unable to fulfill the quality standards or other criteria of the Purchase Contract. The Supplier shall bear the full responsibility for any delivery, performance and non-performance by his sub-contractor and by lower-tier sub-contractors and vendors. The Supplier shall also be responsible for ensuring that his entire sub-contractor chain fulfills all the sub-contracting related local laws and other applicable requirements (whether with respect to employment, workplace safety, quality standards, permits, licenses, public bidding procedure or other requirements).
23.2 All property of the Purchaser, such as tools, molds, patterns, test equipment, test programs, components, materials and other things supplied, paid for, or agreed to be paid for the Supplier or third party by the Purchaser shall be and remain the sole property of the Purchaser. The Supplier undertakes to ensure that the Purchaser’s title to the property is not prejudiced while the property is in the possession of the Supplier or of the Supplier’s sub-contractor. Equipment belonging to the Supplier’s manufacturing process shall remain the property of the Supplier.
23.3 The Supplier is responsible for maintaining, repairing and warehousing of the Purchaser’s property (e.g. molds, patterns, and tooling) at no additional cost to the Purchaser. Furthermore, the property of the Purchaser must be fully insured by the Supplier against fire and other risks, and the Supplier shall keep a record of the property of the Purchaser in his possession.
23.4 The Supplier is not entitled to use any property of the Purchaser for any purposes other than for the execution of the Purchase Contract. Furthermore, the Supplier is not allowed to give or make available such property of the Purchaser to any third party or in any other way to disclose such property of the Purchaser to any third party without the written permission of the Purchaser and for any purposes other than for the Purchase Contract.
23.5 If there arises a need to repair, replace or renew any of the Purchaser’s property (whether due to the Supplier’s negligence or not) the Supplier shall notify the Purchaser immediately. If the need to repair, replace or renew any of the Purchaser’s property is caused by failure of the Supplier to fulfill his obligations or the negligence of the Supplier, he shall promptly repair, replace or renew the Purchaser’s property at his own expense to the Purchaser’s satisfaction.
23.6 The Supplier shall not tamper with or remove any plates, labels or other indications of the Purchaser’s ownership of his property. The delivery of the Purchaser’s property to the Supplier and their return to the Purchaser will take place at the Purchaser’s risk and expense.
23.7 The Purchaser is responsible for ensuring that the manufacturing of the Goods shall not infringe any industrial property rights of any third party, provided that the manufacturing has taken place in accordance with the specific instructions, drawings, samples, patterns and tooling provided by the Purchaser.
23.8 The Goods manufactured in series have to correspond with the test pieces accepted by the Purchaser, and the Supplier is not entitled to start manufacturing of the Goods prior receiving the Purchaser’s written acceptance of these test pieces.
23.9 The weights specified in the drawings of the Goods (e.g. castings) and calculated by the Purchaser are to be interpreted as indicative and the prices of the Goods will be adjusted in accordance with the actual weights in cases where the actual weights differ from the calculated weights by more than +/- 5%. The Purchaser and the Supplier have, however, a common objective of optimizing (minimizing) the weight of the Goods.
23.10 Neither Party shall without written consent of the other Party be entitled to assign or transfer the Purchase Contract or any right or obligation thereunder to any third party.
23.11 Any amendment of or addition to the Purchase Contract or any Appendix thereof shall not be binding upon the Parties unless made in writing and executed by both Parties.
Metso's non-disclosure agreement
1. PURPOSE OF THIS AGREEMENT - BUSINESS SCOPE
The Parties are contemplating to enter into a sub-contracting or other co-operation relationship wherein the Supplier would act as a supplier or a sub-contractor of the Purchaser for certain products or services, such as: ……………………………………………………………………..., hereinafter referred to as the “Business Scope”.
To further discuss and review the Business Scope and to implement it (as applicable), the Parties desire to transmit to and receive from each other, under the terms and conditions of this Agreement, Confidential Information (defined hereinafter).
The Party disclosing Confidential Information is referred to as the “Disclosing Party” and the Party receiving Confidential Information is referred to as the “Receiving Party”.
2. CONFIDENTIAL INFORMATION
For the purposes of this Agreement the Confidential Information shall be deemed to include trade secrets, technical and commercial information or otherwise proprietary information of the Party (or his Group entities) including, but not limited to, marketing, outsourcing or sales strategies or plans, raw materials or product specifications or recipes, manufacturing methods, manufacture or assembly drawings, product development information, designs, technical specifications, supplier or customer lists, parts books, price lists, cost statistics, production or delivery schedules, accounting information or other documentation, files, materials or information – whether written or verbal, software or hardware, digital or electronic and whether or not marked, designated or identified by the Disclosing Party as confidential.
The Confidential Information may or may not relate to the Business Scope.
All analyses, compilations, data, studies, samples, test results or other documents, files, materials or information prepared by or on behalf of the Receiving Party, which are derived from or are based upon the Confidential Information, are also deemed to constitute the Confidential Information.
3. EXCLUDED INFORMATION
The restrictions and obligations of this Agreement shall not apply to any otherwise Confidential Information, which:
a) is or becomes publicly known, without any breach of confidentiality obligations; or
b) was in the lawful possession of the Receiving Party prior to its receipt from the Disclosing Party; or
c) was developed independently by the Receiving Party; or
d) was received by the Receiving Party from a third party without any breach of confidentiality obligations; or
e) is produced or otherwise disclosed by the Receiving Party to satisfy mandatory demand by a competent court, stock exchange or governmental body provided, however, that in these circumstances the Receiving Party shall advise the Disclosing Party prior to such production or disclosure so that the Disclosing Party has an opportunity to defend, limit or protect against such production or disclosure.
4. DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION
The Disclosing Party may disclose to the Receiving Party such Confidential Information, which the Disclosing Party decides to be desirable in connection with the Business Scope.
The Parties acknowledge that the Confidential Information of the other Party is or may be a valuable, special and unique asset belonging to the Disclosing Party. Both Parties undertake and agree as the Receiving Party not, without a prior written consent of the Disclosing Party, to (i) disclose or (ii) hand over to any third party or to (iii) utilize, exploit or otherwise use, any Confidential Information of the Disclosing Party for any reason or purpose whatsoever other than the agreed Business Scope. These restrictions include also a prohibition to reproduce, copy, publish, or permit the same.
However, both Parties shall be permitted, to the extent the agreed Business Scope is concerned, to disclose the Confidential Information of the other Party on a need-to-know basis to their employees, affiliated entities, professional advisers, authorized suppliers and sub-contractors and other authorized representatives provided that such recipients have undertaken to at least equal confidentiality, non-disclosure and non-use obligations as set forth in this Agreement. The Receiving Party shall be fully responsible for any breach of the confidentiality, non-disclosure and non-use obligations of his employees, affiliates, suppliers and sub-contractors.
The Parties agree that money damages may not be sufficient remedy for a breach of this Agreement and that the injured Party may be entitled to seek injunction or specific performance upon a breach or threatened breach of this Agreement by the other Party. Further, the Supplier specifically agrees that the Purchaser’s customers are third party beneficiaries of this Agreement and may enforce each of the Supplier’s obligations, representations and agreements herein.
6. TITLE AND OTHER RIGHTS TO CONFIDENTIAL INFORMATION
Nothing in this Agreement shall be deemed to affect the title to or ownership of any Confidential Information of the Parties or any copyright or other rights relating thereto. The Disclosing Party does not transfer under this Agreement to the Receiving Party any rights to the Confidential Information of the Disclosing Party, other than the right to use such Confidential information for the agreed Business Scope purposes.
7. STANDARD OF CARE
The Receiving Party undertakes to protect the received Confidential Information of the Disclosing Party using adequate information security protective means and in no event less than the same standard of care that he applies to his own confidential information, and handle and maintain the received Confidential Information in such a way as to prevent unauthorized disclosure, hand over and use.
8. RETURN OR DESTROY OF CONFIDENTIAL INFORMATION
The Receiving Party agrees promptly to return or destroy at any time upon a written request from the Disclosing Party, the received Confidential Information of the Disclosing Party.
9. REPRESENTATIONS AND WARRANTIES
Both Parties represent and warrant to the other that he has full corporate power and authority to enter into this Agreement and to do all things necessary for the performance of this Agreement. Both Parties further represent and warrant that he has the right to provide his Confidential Information to the Receiving Party with respect to the agreed Business Scope and that such disclosure shall not constitute a breach of any obligations, representations or agreements with third parties.
This Agreement shall enter into force on the Effective Date and shall thereafter remain in force until five (5) years after the latest of the following occurrences: (i) the Effective Date; or (ii) the expiry date of the discussion regarding the agreed Business Scope; or (iii) the expiry date of a definitive agreement between the Parties regarding the agreed Business Scope. The Parties may agree in the definitive agreement that confidentiality provisions of such definitive agreement shall replace this Agreement.
11. GENERAL PROVISIONS
Any amendment or waiver of any provisions of this Agreement shall be effective only if made in writing by both Parties.
Any notification or demand under this Agreement shall be given in writing and shall be delivered personally, by courier, by certified or registered mail, or by fax or email with return receipt requested, and addressed to the other Party at his last known address. All these notification means shall be deemed written. All these notifications shall be deemed received three (3) business days from the respective delivery (unless earlier receipt is proven by the Party).
The failure to enforce or to require the performance of any of the provisions of this Agreement shall not be construed to be a continuous waiver of such provisions. Such failure shall not affect either the validity of this Agreement or any part hereof or the right of a Party thereafter to enforce any provision in accordance with the terms of this Agreement.
This Agreement or any rights or obligations thereunder shall not be assigned by either Party without the prior written consent of the other Party. However, the Purchaser shall have the right to assign this Agreement within Metso Group in case of Group-internal restructure.
This Agreement shall be binding upon and will inure to the benefit of the Parties and their permitted successors and assigns.
This Agreement shall not establish any license, partnership, joint venture or any other legal or tax entity.
12. GOVERNING LAW AND SETTLEMENT OF DISPUTES
This Agreement shall be governed by, construed and interpreted in accordance with the laws of Finland.
Any disputes arising out of or in connection with this Agreement shall in the first place be solved by the Parties in common negotiations. If the Parties are not able to find an amicable solution within three (3) months from the first written request, then the dispute shall be finally settled in arbitration by three (3) arbitrators in accordance with the Commercial Arbitration Rules of the Central Chamber of Commerce of Finland. The arbitration shall take place in Helsinki. The language to be used in the arbitration procedure shall be English.
This Agreement shall be governed by, construed and interpreted in accordance with the laws of Sweden.
Any disputes arising out of or in connection with this Agreement shall in the first place be solved by the Parties in common negotiations. If the Parties are not able to find an amicable solution within three (3) months from the first written request, then the dispute shall finally be settled in arbitration by three (3) arbitrators in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The arbitration shall take place in Stockholm, Sweden. The language to be used in the arbitration procedure shall be English.
13. ENTIRE AGREEMENT AND SEVERABILITY
This Agreement contains the entire agreement of the Parties on the subject matter and supersedes all prior agreements between the Parties on the subject matter of this Agreement.
In the event that any provisions of this Agreement shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions of this Agreement. In case of such partial invalidity or unenforceability, the remainder of this Agreement shall be construed according to the original purpose of the Parties.