PROCUREMENT GENERAL TERMS AND CONDITIONS
These terms and conditions shall apply to any purchase order between the Seller (“SELLER”) and Gothong Southern Shipping Lines Inc. (the “BUYER”) relating to goods and services. These terms and conditions are binding between BUYER and SELLER and shall supersede any SELLER terms and conditions. In the event any written special Contract are agreed between the parties, the terms and conditions under such Contract shall prevail over the terms and conditions herein.
- DEFINITIONS
- BUYER:shall refer to Gothong Southern Shipping Lines Inc. and its authorized representative.
- SELLER:shall refer to any 3rd party entity from whom Goods and/or Services are purchased by the BUYER.
- GOODS:shall refer to any merchandise, material or item specified in the Purchase Order issued by Gothong Southern Shipping Lines Inc.
- SERVICE: shall refer to any work, obligation or responsibility to be provided or delivered by the SELLER and expressly specified in the Purchase Order or any other written agreement issued by Gothong Southern Shipping Lines Inc. This includes the provision of any sub-service and/or resources necessary for SELLER’s successful completion of the Service (including but not limited to supervision, labor, materials, equipment, etc.).
- CONFIDENTIAL INFORMATION:shall refer to all proprietary information belonging to the BUYER whether disclosed to SELLER directly or indirectly, in writing, verbally, or in any other form. This includes, but not limited to, specifications, technical drawings, purchase orders, contracts, project plans, trade secrets, inventions, financial figures, and other information from another party who have entrusted such to the BUYER.
- PURCHASE ORDER: shall refer to the commercial document issued by BUYER to SELLER indicating the requirements of the purchase (whether GOODS or SERVICE) such as, but not limited to, item description, quantity, agreed price, delivery/completion date, payment terms, and other special instructions. This document shall be alternatively referred to as the “AGREEMENT”.
- FORCE MAJEURE: shall refer to any act or event beyond the control of both BUYER and SELLER which may impede the performance of both parties to fulfill their obligations under this AGREEMENT. Only the following are considered FORCE MAJEURE(1) riots, wars, terrorism or sabotage (2) earthquakes, floods, typhoon, epidemics, maritime or aviation disasters, and government sanctions.
- ORDER ACCEPTANCE: SELLER shall receive an approved Purchase Order from the BUYER before delivery of goods and/or commencement of any Service. Acceptance of this order is subject to the terms and conditions herein which may not be amended or superseded except in writing signed by BUYER’s authorized representative. BUYER shall not be bound by and therefore objects to any provisions in conflict with the terms and conditions herein that may appear in SELLER’s quotation, invoice and/or any other document, unless expressly agreed in writing by both parties.
- PRICE: The price/s stated on the Purchase Order are not subject to increase and should include, packaging, insurance, freight, and applicable taxes unless otherwise instructed by the BUYER. SELLER’s quoted price for the Goods and/or Services may be reduced at any time either in the form of price reduction, rebates, or additional discounts as agreed by both parties. If at any time during the term hereof, a third party seller offers the BUYER a lower price for Goods and/or Services of like specification and quality on the then undelivered portion hereof, and BUYER fully informs SELLER of such lower price, then SELLER shall meet such lower price or BUYER may opt to purchase such Goods and/or Services from such third party seller without liability to the BUYER.
- FAILURE TO PERFORM: Notwithstanding any other provision of this terms and conditions, in the event that SELLER fails to provide the Goods and/or Service contracted for any reason, and such failure continues for more than five (5) calendar days from due date, BUYER reserves the right to acquire similar Goods and/or Services from another Seller or terminate the Purchase Order immediately upon notification to SELLER without any liability or prejudice to any rights of the BUYER. Except where such failure results from force majeure, SELLER agrees to reimburse BUYER for the difference in cost between those specified in the Purchase Order and those paid by BUYER to a third party seller. SELLER agrees that it will make its best effort to advise BUYER of any and all anticipated delays as soon as possible.
- WARRANTY: SELLER represents and warrants that all Goods and/or Services shall: (a) for a period of one year from the date of acceptance, or the date of completion as evidenced by BUYER’s certificate of completion and use, be free from defects in design, workmanship and materials; (b) be of the kind and quality described in, and shall conform with, the Specifications and Quality Standards specified in the Purchase Order; (c) be fit for the purpose intended; (d) perform in the manner specified; (e) be free and clear of all liens, claims and encumbrances by the delivery date; and (f) comply with all other requirements of this Purchase Order and with all applicable laws. SELLER shall correct any non-conformance with the foregoing representations or warranties at its sole expense, as directed by BUYER, by promptly: (i) repairing, replacing or re-performing the non-conforming Goods and/or Services (and correcting any manuals, drawings or instructions affected); (ii) furnishing BUYER with all materials, parts and instructions necessary to correct the non-conformity; or (iii) refunding to BUYER any portion of the purchase price paid by BUYER under this Purchase Order and canceling any further portions due in respect of non-conforming Goods and/or Services. The representations and warranties applicable to any corrected Goods and/or Services shall be the same as the representations and warranties provided for in this Section.
- INSURANCE: Prior to commencement of any Delivery and/or Service, SELLER will arrange any insurance required by applicable laws, and maintain that insurance in effect throughout the duration of the Purchase Order. Satisfaction of the obligation to procure insurance and perform other actions in connection with this Article will not relieve SELLER of any other obligations or liabilities.
- RETURN OF GOODS AND/OR SERVICES: BUYER is entitled to return to SELLER any Goods that are not in full compliance with agreed requirements at SELLER’s expense for credit to BUYER at the full price plus all reasonable costs and expenses associated with such return. If Services are not in full compliance with agreed scope and/or requirements, then BUYER is entitled to a credit or to withhold payment in whole or in part, and BUYER, upon prior written notice to SELLER, may employ a third party to perform SELLER’s obligations at SELLER’s expense.
- INVOICING AND PAYMENT: SELLER shall submit original invoice within 10 days from delivery of Goods or completion of the Service. The due date for payment shall be based on agreed credit term by both parties and is calculated from the date the invoice is received at the designated location by the BUYER or from the date of receipt of Goods and/or completion of the Service, whichever is later. BUYER may withhold payment if: (a) SELLER’s invoice is inaccurate or does not meet BUYER’s invoice requirements as stipulated in the Procurement Policies, (b) SELLER’s invoice does not meet legal or tax requirements, and (c) BUYER finds any other discrepancy relative to the transaction that may be reasonably disputed. Under no circumstance shall the payment be made ahead of agreed credit term unless expressly approved by the BUYER.
- TERMINATION: Under sufficient grounds or cause, BUYER may terminate a Purchase Order, in whole or in part, within five (5) working days prior written notice to the SELLER without any penalty, liability or further obligation.
- CONFIDENTIALITY AND INTELLECTUAL PROPERTY (“IP”): SELLER agrees not to disclose any confidential information to any person or entity at any time unless with written consent by the BUYER. SELLER also warrants that the Goods/Services and any resulting work product will not infringe or violate the IP rights of any third party. Further, SELLER represents and warrants that at the time hereof, there are no claims and pending legal actions against the SELLER by any third party for alleged infringement or violation of IP rights for Goods/Services offered or rendered to the BUYER. SELLER shall notify the BUYER immediately if such claims or actions arise.
- OWNERSHIP: Except for IP rights vested to the SELLER, all ownership rights, titles, and interest for any creative idea, design, invention, innovation, improvements or enhancements that are custom-made to the specifications or requirements of the BUYER or made using BUYER’s proprietary information shall be vested to the BUYER. To the extent that such assignment is not legally permissible, SELLER shall grant the BUYER irrevocable, non-exclusive, perpetual and royalty-free license of SELLER’s IP to the fullest extent permitted by law.
- INDEMNITY: SELLER agrees to indemnify and hold harmless the BUYER, its customers, affiliates, and employees from and against all losses, claims, liabilities, damages, cost and expense of any nature in connection with the following: (a) defects, omissions, or negligence in the manufacture of Goods or provision of Services; (b) SELLER’s breach of its obligations; (c) Negligence or other act or omission of SELLER or its officers, employees, agents or subcontractors in its performance; (d) SELLER’s breach of its confidentiality obligations; (e) SELLER’s actual or alleged noncompliance with applicable laws, regulations, rules and ordinances; (f) claims (threatened, alleged or actual) made by any entity subcontractor for compensation, damages or otherwise; (g) any actual or alleged infringement or misappropriation of any Intellectual Property Right with respect to the Goods and/or Services or their respective use in BUYER’s business operations, and other resources provided by SELLER; and (h) damage to property of any nature or bodily and personal injuries to persons caused or contributed to by the SELLER or anyone acting under its direction or control or on its behalf in the course of its performance hereunder. BUYER shall notify SELLER promptly of any such claim or suit. BUYER reserves the right to conduct its own defense in any such claim or suit and to compromise or settle its own liability at any time upon releasing SELLER from its obligations under this Section.
- INDEPENDENT CONTRACTOR: BUYER and SELLER are independent parties and nothing contained in the Purchase Order shall be construed to place both parties in the relationship of employer and employee, partners, principal agent or joint ventures. SELLER shall not have the right or power to bind BUYER. SELLER shall pay and discharge all payroll taxes that may be assessable or payable for or on account of the wages of any person employed by the SELLER, either directly or indirectly, involved in the performance of this Purchase Order.
- COMPLIANCE WITH LAWS: SELLER shall cause any person or entity acting on its behalf to fully comply with all applicable governmental and national laws of the Philippines, including but not limited to rules, regulations, ordinances and executive orders. SELLER shall promptly notify BUYER if SELLER (a) receives any notice, demand, summons or complaint from any governmental or regulatory authority, agency or other body relating to the subject matter of this AGREEMENT, and will take all steps, at SELLER’s expense, to resolve any issues as promptly as practicable or any request or demand in violation of the LAWS.
- COMMUNICATION: SELLER must direct all written communications related to this Purchase Order to a BUYER’s purchasing representative. SELLER shall use all reasonable efforts to: (a) keep BUYER advised of the status of SELLER’s performance hereunder; (b) permit BUYER to review and observe, from time to time upon reasonable notice, the delivery or performance hereunder; (c) provide BUYER with reports as are appropriate to the nature of SELLER’s responsibilities and otherwise as may be reasonably requested by BUYER; and (d) keep, for work payable on a time and materials basis, reasonably detailed records of hours worked, costs of materials used and other relevant expenses incurred in fulfilling this Purchase Order, which records BUYER may examine from time to time upon reasonable notice.
- ASSIGNMENT: SELLER shall not delegate, subcontract, transfer or assign this Purchase Order or any of its rights or obligations, whether in whole or in part, without the prior written consent of BUYER, not to be unreasonably withheld or delayed.
- SURVIVAL: The representations, warranties and indemnities contained herein shall survive the termination of this Agreement.
- BUYER’S POLICIES: SELLER shall comply with all policies of the BUYER relating to the Goods or Services to be provided under this Purchase Order and as communicated in writing to SELLER by BUYER. Without limiting the foregoing, SELLER represents and warrants that it has reviewed the contents of and shall comply with the BUYER’s policies as stated in the Procurement Policies.
- ENFORCEABILITY:If, for any reason, any portion of this terms and conditions becomes unenforceable or determined by a Philippine court of competent jurisdiction to be in violation of or contrary to any applicable statute, regulation, ordinance, order, or common law doctrine, then that portion will be of no effect. Nevertheless, the balance of this terms and conditions shall remain in full effect as if such provision/s were never included.
- CHOICE OF LAW: Any dispute or claim arising out of or in connection with BUYER’s Purchase Order and/or terms and conditions herein, including any non-contractual disputes or claims, will be exclusively governed by and construed in accordance with the laws of the Philippines, excluding conflict of law rules and choice of law principles that provide otherwise. All legal actions shall be filed with the courts of Cebu City to the exclusion of all courts elsewhere situated. The United Nations Convention on the International Sale of Goods will not apply to this terms and conditions.