general purchase conditions Huntsman Holland BV

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1 general purchase conditions Huntsman Holland BV

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3 general purchase conditions Huntsman Holland BV General Purchase Conditions of Huntsman Holland BV ( Huntsman, and/or it and and/or its, registered with the Chamber of Commerce in Rotterdam under number ). These General Purchase Conditions are filed with the Chamber of Commerce in Rotterdam. February 2010

4 Table of contents Article 1 Applicability 3 Article 2 Invitation to tender and order 3 Article 3 Changes and contract variations 3 Article 4 Transfer to third parties / sub-contracting 4 Article 5 Transfer of risk and ownership in the case of goods purchases 4 Article 6 Price and review of prices 4 Article 7 Billing and payment 5 Article 8 Delivery 5 Article 9 Product support and spare parts 6 Article 10 Guarantee 6 Article 11 Force majeure 7 Article 12 Bank guarantee 7 Article 13 Liability 7 Article 14 Inspection of design documents and Supplies 8 Article 15 Health, Safety and the Environment 9 Article 16 Packaging 9 Article 17 Intellectual Property Rights; Licences 9 Article 18 Confidentiality 9 Article 19 Termination 10 Article 20 Disputes 11 Article 21 Applicable law 10 Article 22 Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) 11 Article 23 General 11 2

5 Article 1 Applicability 1.1 Any supplier (hereinafter the Supplier and/or he and and/or his ) supplying goods and/or services to, and/or carrying out works for Huntsman accepts the applicability of these General Purchase Conditions with the exclusion of the Supplier s selling, delivery, payment or other conditions. 1.2 These General Purchase Conditions apply to all invitations to tender, quotations, orders and agreements concerning the supply of services and/or goods (and any assembly and/or installation of these goods) and/or the execution of works (hereinaft jointly and individually Supplies ) to or at the site or sites of Huntsman. 1.3 Departures from these General Purchase Conditions are valid only provided Huntsman has agreed to them expressly and in writing, and apply only to the transaction for which they have been expressly confirmed. A departure confirmed by Huntsman does not have any retroactive effect and does not apply to future agreements, unless expressly agreed otherwise in writing. 1.4 In case of conflicts, the following shall prevail and in that order: the order, these General Purchase Conditions, the invitation to tender and the quotation. Article 2 Invitation to tender and order 2.1 Invitations to tender are not binding on Huntsman and only serve as an invitation to the Supplier to issue a quotation. Should the Supplier be in doubt about, or have objections to Huntsman s invitation to tender, for example concerning the technique, safety, feasibility or cost, he informs Huntsman and provides it forthwith with an alternative quotation. 2.2 A quotation by the Supplier is irrevocable and valid for at least ninety (90) calendar days. The quotation has to be definitive, exact and complete and must include all that is required for the Supplies to be delivered in full and in working condition. 2.3 Huntsman does not reimburse the costs incurred by the Supplier on issuing a quotation. 2.4 Huntsman may terminate negotiations without stating any reason and without any obligation to pay damages. 2.5 Huntsman shall be bound only if a duly authorised representative of its purchasing department places an order with the Supplier. 2.6 An order can be changed only if the parties have agreed to the change or changes in writing. 2.7 If reference is made in the invitation to tender and/or order to technical, safety, quality or other instructions, and documents and drawings that are not attached to the invitation to tender and/or order, the Supplier is deemed to be familiar with these, unless the Supplier informs Huntsman forthwith and in writing of the contrary. Huntsman will then inform the Supplier in more detail of these instructions, documents and drawings. Article 3 Changes and contract variations 3.1 Huntsman is entitled to change the scope and extent of the agreed Supplies, even when this results in contract variations. 3.2 If in the opinion of the Supplier such a change affects the agreed-upon price and/or the delivery date, he shall inform Huntsman forthwith and in writing, and issue a new quotation regarding the price and term associated with it, as well as the consequences for the other work to be carried out by the Supplier. No variations will be carried out until Huntsman has issued a written instruction for it. 3.3 Additional work the Supplier could or should have foreseen at the time the contract was concluded to be in a position to deliver the agreed-upon supplies, or that is the 3

6 result of a shortcoming on the part of the Supplier, shall in any event not be included in contract variations. Article 4 Transfer to third parties / sub-contracting 4.1 The Supplier shall not transfer to a third party any part of the rights or obligations arising from tender invitations, quotations, orders and agreements to which these General Purchase Conditions apply without Huntsman s prior written permission. Huntsman has the right to make any permission subject to conditions. 4.2 Transfer of the Supplier s obligations to a third party does not release the Supplier from any obligation or liability arising from the order placed with him. 4.3 The Supplier is not entitled to subcontract any part of the execution of the agreement to third parties without Huntsman s prior written permission. Huntsman may make its permission subject to additional conditions. Article 5 Transfer of risk and ownership in the case of goods purchases 5.1 The risk attaching to goods purchased passes to Huntsman the moment they are delivered in conformity with article 8 and Huntsman confirms the delivery in writing through a duly authorised person who shall state his name. Ownership passes the moment delivery takes place in conformity with article If for the purpose of the agreement Huntsman makes or is deemed to have made available materials, including equipment, machines, parts and raw materials and consumables to the Supplier, these materials remain or become the property of Huntsman, and the Supplier shall keep these materials under his control clearly marked as being the property of Huntsman and furnish the latter with an ownership certificate whenever Huntsman requests him to do so. Goods that are the result of pooling, confusion or otherwise with the materials, become the property of Huntsman the moment such pooling, confusion or otherwise takes place. The Supplier is deemed to have produced the goods for Huntsman and shall hold these new goods as the property of Huntsman and furnish the latter with an ownership certificate whenever requested to do so. 5.3 At the request of Huntsman, ownership of the goods may pass before the moment of delivery in accordance with Article 8. In such cases, the Supplier is obliged to keep these materials in his custody, clearly marked as being the property of Huntsman, and to provide Huntsman with a certificate of ownership if so required. 5.4 The Supplier is liable for the loss of or damage to the materials and goods referred to in Articles 5.2 and 5.3. In the event that a third party claims to have a right to the materials and goods referred to in Articles 5.2 and 5.3 and/or attaches the aforementioned materials and goods, the Supplier will notify the third party in question of the fact that Huntsman is the owner of these materials and goods, and he shall notify Huntsman of the claim and/or attachment. Huntsman is at all times entitled to remove the materials and goods it owns from their location and to access the areas used for that purpose at or by the Supplier. Article 6 Price and review of prices 6.1 Prices are exclusive of VAT and, unless otherwise agreed in writing, include assembly, instruction, packaging, transport, storage, delivery, insurance, excise duties and other delivery expenses and generally include all the costs of complying with the Supplier s obligation. 4

7 6.2 Prices are not changed unless the order states the circumstances that may result in price adjustment, as well as the manner in which the adjustment is to be made. Article 7 Billing and payment 7.1 Billing is subject to delivery of the Supplies in conformity with article Invoices are paid within forty (40) days of the invoice date. 7.3 Invoices should state the order number. If and for as long as the order number is missing, Huntsman shall have the right to suspend the payment obligation. 7.4 Different payment arrangements are binding on Huntsman only if they have been expressly agreed in writing. 7.5 Huntsman has the right to suspend payment if it finds a shortcoming in the Supplies. 7.6 Payment by Huntsman shall not constitute recognition that the Supplies are in conformity with the agreement and shall not imply in any manner whatsoever any renunciation of rights. 7.7 Huntsman has the right to set off amounts owed to the Supplier under the agreement against whatever amount he owes Huntsman for whatever reason. 7.8 In the event of defaulting on an invoice payment obligation by the due date, Huntsman shall owe only interest on the amount in question and only with effect from the date the Supplier has given Huntsman written notice of default. In that event, Huntsman will owe the lower of the following interest rates: either the European interbank credit rate with a term of three months (3 months Euribor) applicable on the date of the notice of default or the statutory interest rate in force on the date of the notice of default. Article 8 Delivery 8.1 In the case of goods purchases by Huntsman and a different delivery method has not been expressly agreed in writing, delivery shall be DDP (Delivered Duty Paid) at the place indicated by Huntsman. The ICC INCOTERMS 2000 provisions as amended or expanded apply to the deliveries, save as provided differently in these General Purchase Conditions or the order. In the case of assembly and/or installation of goods by the Supplier, the rendering of services or execution of works, the moment of delivery shall be the moment the assembly and/or installation, the service or the work is completed. 8.2 Partial deliveries are not allowed, save with the written permission of Huntsman. 8.3 Supplies must be delivered at the date and place and in the quantities specified by the parties. If the Supplier does not succeed in delivering the Supplies on the agreed date, Huntsman has the right, at the expense of the Supplier, without notice of default and without intervention by the courts or compensation, to obtain supplies elsewhere or have a third party take care of this, even if the price of this third party were to be higher than the contractual price, or to terminate the agreement likewise without notice of default and without intervention by the courts or compensation. The Supplier also undertakes in all cases to compensate Huntsman for all losses and damage Huntsman reasonably suffered as a result of delays in the performance of the agreement and/or its termination. Where appropriate and insofar as agreed between the parties beforehand, Huntsman may impose on the Supplier without prior notice of default a penalty for late delivery that will be immediately payable on the date it is imposed. The imposition, collection or setting off of this penalty shall not affect Huntsman s right to specific performance, compensation and termination. 8.4 Huntsman is not obliged to pay for any supplies delivered to it in excess of the quantities specified in the order. Regardless of the excess supplies delivered, they will be returned at the risk and expense of the Supplier should Huntsman so request. 5

8 8.5 In the exceptional event that Huntsman were to expressly undertake to collect the goods itself, delivery takes place when the Supplier loads the goods onto the vehicle of Huntsman s carrier or, where it concerns bulk goods, when the goods flow past the inlet valve of the tank of Huntsman s carrier. 8.6 If Huntsman itself unloads the goods at the place indicated by it, delivery takes place the moment the goods are lifted from the vehicle of the Supplier s carrier, or as appropriate, the moment the goods flow past the inlet valve of Huntsman s tanks. 8.7 Any documents signed by or on behalf of Huntsman showing the Supplies to have been delivered, do not in any case constitute confirmation or proof of confirmation by Huntsman of the state of the goods and/or that the services and/or the work were executed in conformity with the agreement, and do not prejudice any of the other rights or any other compensation to which Huntsman might be entitled under the agreement or in pursuance of the law. Article 9 Product support and spare parts 9.1 The Supplier guarantees that Huntsman can for a period of ten years purchase from him the spare parts for the Supplies concerned and the maintenance required to keep them in a good condition, or that these can be obtained by Huntsman, at competitive prices respectively. Article 10 Guarantee 10.1 The Supplier guarantees that the Supplies he delivered and the materials he used are in conformity with what has been agreed and with the specifications laid down in the order or, if no specifications are laid down in the order the specifications described in the Supplier s product data sheet, and that the technology of these Supplies and materials is state-of-the-art, that they are in agreement with all legal and administrative provisions, with normal usage requirements, reliability and useful life, and with the health, safety and environmental regulations applicable to the country in which the Supplies will be used, provided the Supplier is notified of the country concerned or is otherwise familiar with it. Huntsman is not obliged to immediately check or inspect the delivered Supplies The Supplier is required to obtain information on Huntsman s usage of the Supplies and guarantees that the Supplies are suitable for this usage. The Supplier warrants that the Supplies are entirely complete and ready for use. The Supplier ensures, inter alia, that all parts, consumables, tools, spare parts, directions for use, as-built-drawings, quality, inspection and material certificates and instruction booklets (in the Dutch language) required for achieving the purpose stated by Huntsman are included in the Supplies, even if they are not mentioned by name If parties did not agree on a guarantee period, this period will be 24 months after the date of delivery in conformity with article 8. This guarantee period is suspended and extended by the suspension period for as long as the delivered Supplies are deficient. A new guarantee period of 24 months begins for parts replaced and repairs carried out within the guarantee period. Deficient Supplies or parts remain at Huntsman s disposal until they have been replaced beyond reproach During the guarantee period, the Supplier guarantees prompt, free-of-charge repairs of the delivered Supplies, unless the Supplier shows that the deficiencies of these Supplies are entirely attributable to Huntsman. The Supplier bears all the costs, including but not limited to materials, transport, travel & accommodation, assembly and disassembly and labour costs. 6

9 10.5 In urgent cases or in the event of delay, Huntsman itself may repair the deficiencies or may have them repaired, and recover the costs from the Supplier on condition that it notified the Supplier of this intention In addition, in all cases Huntsman shall have the right to compensation for all the damage caused by the deficiency as well as to the Supplier s indemnification against any and all claims for damages by third parties The stipulations of this article are without prejudice to Huntsman s other rights in pursuance of these General Purchase Conditions and the law. Article 11 Force majeure 11.1 In case of temporary force majeure, the Supplier may suspend compliance with his obligations under the agreement for a reasonable period not exceeding four (4) weeks, with the proviso that the Supplier informs Huntsman immediately after the occurrence of the circumstance responsible for the force majeure and states its cause. If the Supplier is unable at the end of these four (4) weeks to comply with his obligations, Huntsman shall be entitled to terminate the agreement without any obligation to pay damages or costs. In case of permanent force majeure affecting the Supplier, he shall inform Huntsman immediately and Huntsman shall be entitled to terminate the agreement immediately without any obligation to pay damages or costs Should Huntsman be unable to accept delivery or comply with another obligation due to force majeure, including but not limited to a breakdown in equipment or machines, sabotage, industrial conflicts, shutdowns, acts or omissions by any government agency (de jure or de facto), harbour blockades, shortage of consumables, raw materials, fuel, energy as a result of inadequate supply or of another situation (either similar to the foregoing or not) over which Huntsman has no control or which renders compliance with its obligations either impossible or extremely difficult, each party shall have the right to terminate the agreement by written notification to the other party without any court intervention and without liability for any damage whatsoever suffered by the Supplier as a consequence of the termination. Article 12 Bank guarantee 12.1 Huntsman may demand that the Supplier furnish a bank guarantee as security for compliance with his obligations vis-à-vis Huntsman. This bank guarantee must meet the conditions Huntsman sets from time to time and will be obtained from a banking institution acceptable to Huntsman. Article 13 Liability 13.1 The Supplier is liable for all damage Huntsman suffers as a result of an imputable failure to perform the agreement, perform it properly or on time. Furthermore, the Supplier shall be liable for all damage Huntsman suffers as a result of a breach of any contractual or other obligation/obligations vis-à-vis Huntsman on the part of the Supplier or (subordinate) third parties acting on the instructions of the Supplier The Supplier holds Huntsman harmless against all claims from third parties, including but not limited to damage caused by the end-product made with the delivered Supply but that is attributable to a deficiency in the Supply delivered by the Supplier to Huntsman In the event that the Wages and Salaries Tax and National Insurance Contributions (Liability of Sub-contractors) Act (Wet Ketenaansprakelijkheid) (hereinafter the Sequential Liability Act ) applies, the Supplier shall hold Huntsman harmless against any 7

10 and all claims from third parties, including but not limited to the Employee Insurance Agency (Uitvoeringsinstituut Werknemersverzekeringen) or the Tax and Customs Administration (Belastingdienst) due to non-compliance by the Supplier or his subcontractor with his obligations pursuant to the Sequential Liability Act. In respect of the premiums under the social security laws and the wages and salaries tax for which Huntsman is jointly and severally liable in pursuance of the Act that are owed by the Supplier relating to the Supply, Huntsman shall have the right at all times either to deduct from the price or pay to the Supplier by means of a deposit into his blocked account/accounts within the meaning of the Sequential Liability Act and/or to pay the aforementioned amounts in respect of the premiums under the social security laws and of the wages and salaries tax on behalf of the Supplier directly to either the Employee Insurance Agency concerned or the Tax and Customs Administration, as the case may be, and/or demand that the Supplier furnish sufficient financial security in the form of bank guarantees or security deposits for the amount/amounts for which Huntsman believes it can reasonably be held liable. The amount/amounts for which Huntsman believes it will reasonably be held jointly and severally liable in pursuance of the Sequential Liability Act will be a percentage of the price to be determined by Huntsman at a later stage As security for his liability pursuant to the law and these General Purchase Conditions the Supplier shall contract, and renew as and when required, adequate insurance cover adapted to the work and the risks and furthermore insure all risks arising from his business operations that are insurable at normal conditions and renew such insurance as and when required. At Huntsman s request, the Supplier shall submit without delay (a certified copy of) the insurance policies and proof of payment of the premiums. The Supplier hereby cedes in advance all rights to insurance claim proceeds, insofar as relating to damage for which the Supplier is liable vis-à-vis Huntsman. The Supplier s liability shall not be restricted by his insurance obligation, nor by the extent of the cover of this insurance Save in the event of intent or gross negligence, Huntsman is not liable vis-à-vis the Supplier for any damage whatsoever arising from or related to failure to perform the agreement, perform it properly or on time, or by breach of any contractual or non-contractual obligation by Huntsman. Article 14 Inspection of design documents and Supplies 14.1 All preparatory documents, drawings and/or designs (hereinafter the Design Documents ) required for the Supplies should be submitted by the Supplier for inspection prior to delivery on Huntsman s demand or on the date or time mentioned in the order. The Supplier is required to provide all necessary collaboration to this end No rights accrue to the Supplier as a result of the outcome of a test or inspection by or on behalf of Huntsman and such tests or inspections do not in any event constitute approval or proof of approval by Huntsman of the completeness, correctness or practicability of the Design Documents or of the Supply s conformity with what has been agreed upon and do not impair the responsibility of the Supplier for the completeness, correctness or practicability of these Design Documents or conformity of the Supply, his liability for defects in the Supply and the rights of Huntsman pursuant to these General Purchase Conditions and the law. 8

11 Article 15 Health, Safety and the Environment 15.1 The Supplier and (subordinate) third parties acting on the instructions of the Supplier are obliged to observe all legal safety, health and environmental regulations The Supplier and (subordinate) third parties acting on the instructions of the Supplier are obliged to observe the procedures and instructions of Huntsman in the field of health, safety and the environment. Copies of the procedures instructions and conditions referred to in this Article are made available by Huntsman upon the Supplier s request The Supplier ensures that his presence and the presence of (subordinate) third parties acting on the instructions of the Supplier do not obstruct the progress on Huntsman s site, and in its buildings and factories of Huntsman s and third parties activities Prior to the delivery of Supplies, the Supplier should gather information on the required state and circumstances on Huntsman s site, in its buildings and factories where the Supplies are to be delivered. The costs of execution delays due to circumstances as aforementioned are at the risk and for the account of the Supplier. Article 16 Packaging 16.1 The Supplies are packaged, protected in the best way possible and marked in accordance with Huntsman s instruction all at the risk and expense of the Supplier so that the Supplies are delivered in good condition and can be safely transported and offloaded The Supplier carefully observes any special packaging and transportation requirements instructed by Huntsman If the Supplier does not comply with the stipulations of Articles 16.1 and 16.2, Huntsman will have the right to refuse delivery of the Supplies concerned. In that event the Supplies are regarded as undelivered Where containers or packaging must be returned to the Supplier, this must be clearly stated in the waybill. The containers and packaging in question must then be returned to the Supplier at his risk and expense, unless otherwise agreed in writing The Supplier is obliged to compensate Huntsman for any damage it suffers as a result of Supplies that are not properly packaged, protected, transported and/or marked, and to indemnify Huntsman for all possible claims concerning damage suffered by third parties as a result. Article 17 Intellectual Property Rights; Licences 17.1 If the delivered Supplies or their documentation are subject to intellectual property rights, Huntsman and its group companies acquire a right-of-use to them free of charge by means of a non-exclusive, worldwide, perpetual licence. All intellectual property rights accruing as a result of the execution of the agreement by the Supplier or (subordinate) third parties acting on the instructions of the Supplier shall be vested in Huntsman. Upon demand by Huntsman, the Supplier shall do all that is necessary for these rights to be acquired and secured. The Supplier guarantees that the delivered Supplies do not breach the intellectual property rights of third parties. The Supplies indemnifies Huntsman against third party claims due to breaches or alleged breaches in this respect and compensates Huntsman for all damage suffered as a result. Article 18 Confidentiality 18.1 Any and all information or property the Supplier obtains directly or indirectly from Huntsman or its group companies and any and all documents or property that he 9

12 produces in the course of executing the order is confidential. They shall not be communicated to third parties and be used only for the execution of the agreement Drawings, sketches, calculations, formulas, manufacturing methods, studies, models, matrixes, templates, all written information and every item of property or document produced including all copies and other similar information and tools (hereinafter jointly the materials ) that Huntsman puts at the disposal of the Supplier or that are produced or developed by him on the instruction of Huntsman are or become the property of Huntsman and shall not be communicated by the Supplier to third parties and used only for the execution of the agreement. The Supplier shall not apply for a patent on the materials. The Supplier undertakes to retain the materials separately and mark them as the property of Huntsman. The Supplier shall return to Huntsman at his expense the materials, together with any copies and the like that have been made of them, in good condition and as soon as they have served their intended purpose, or before, if Huntsman so requests Unless Huntsman gives written permission, the Supplier shall not use the name Huntsman either in his publicity and advertising material or in any other manner whatsoever The Supplier undertakes to impose the same obligations on (subordinate) third parties acting on the instructions of the Supplier who receive confidential information for the purpose of executing the agreement, and guarantees that these (subordinate) third parties acting on the instructions of the Supplier comply with the obligations set out in Articles 18.1, 18.2 and Article 19 Termination 19.1 Without prejudice to all other rights or any other compensation to which Huntsman might be entitled contractually or pursuant to the law, Huntsman is entitled to terminate any part of the agreement by means of a written statement without any further notice of default or court intervention if: - the Supplier fails to comply or to comply properly with one or more obligations under the agreement; - the Supplier is declared bankrupt, files for bankruptcy, applies for a moratorium or is subject to similar measures in the jurisdiction in which Supplier s organisation is established, he ceases business operations or liquidates his business, his permits are revoked, a significant part of his assets or goods intended for the execution of the order are attached or he transfers his business to a third party or parties In the event of termination, the risk attaching to Supplies already delivered remains with the Supplier. The supplies are then at the disposal of the Supplier and should be collected by him. The Supplier shall immediately refund the amount or amounts already paid by Huntsman in respect of the terminated agreement. Article 20 Disputes 20.1 If any claim whatsoever and any difference of opinion or dispute of whatever kind (hereinafter disputes ) arises between the parties and cannot be resolved through mediation by the parties themselves, only the court of jurisdiction in the district of Rotterdam shall be competent to settle the disputes. Article 21 Applicable law 21.1 Only the laws of the Netherlands, with the exclusion of any other choice of law or whatever other Dutch, foreign or international rules of conflict that would make another 10

13 system of law of another jurisdiction applicable, shall apply to all issues, questions and Disputes concerning the validity, interpretation, enforceability, execution and termination relating to these General Purchase Conditions or to agreements, quotations, invitations to tender and orders between the parties. Application of the Vienna Convention on Contracts for the International Sale of Goods is expressly excluded. Article 22 Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) 22.1 The Supplier warrants that the Supplies and substances forming part of the Supplies that are produced or imported in the European Economic Space are in conformity with Council Regulation 1907/2006 of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and to any future amendments of and additions to these Regulations. Article 23 General 23.1 The voidness or unenforceability for whatever reason of a stipulation in these General Purchase Conditions does not impair or affect the validity or enforceability of the other stipulations in these General Purchase Conditions. Parties shall replace the void stipulation by a valid one that has the same effect within the confines of the law as the stipulation that was declared void. 11

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16 Huntsman Holland BV Postbus 1020, 3180 AA Botlek Rotterdam Merseyweg 10, 3197 KG Rotterdam Havennummer 5210 T F I