SCHWING AMERICA GENERAL TERMS AND CONDITIONS FOR SUPPLIERS
1.1 In these terms and conditions (“Conditions”) “Buyer” means the Schwing America Inc. that has issued a purchase order signed by its authorized representative (“Order”) and “Supplier” means the entity to whom the Order is addressed. The Conditions shall be applied to all deliveries of products, materials, works or services (“Goods”) to Buyer. Acceptance or execution of an Order by Supplier constitutes a contract (“Contract”).
1.2 The Contract is concluded exclusively on the terms and conditions stated in the Order and these Conditions. Any and all general terms and conditions of Supplier are expressly excluded, whether referred to in Supplier’s acceptance of the Order or elsewhere, appended to the order confirmation or posted on any website.
2. ORDER CONFIRMATIONS
Suppliers must confirm all Contracts and Purchase Orders with the Buyer.
2.1 Order acknowledgment: Supplier will acknowledge receipt of all Contracts and Purchase Orders with 48 hours of receipt.
2.2 Price: The price for the Goods shall be confirmed by the supplier for price stated in the specific written agreement between the parties, or if none, in the Purchase Order. The price shall be fixed for the duration of the Contract. If price does not include packing charges, Supplier is requested to notify the Buyer prior to delivery of materials or services.
2.3 Delivery Date: Supplier shall provide goods and services to arrive at destination on the date stated on the Contract or Purchase Order. Supplier shall inform Buyer immediately of any likely delay and the new delivery date.
2.3.1 If delivery or a part of it is delayed, Buyer shall have the right to terminate the Contract and cancel the Order, in whole or in part
2.4 Packaging: The Goods shall be properly packed, secured, marked (and in accordance with Buyer’s instructions if such are issued) and dispatched by Supplier so that they arrive in good condition and unharmed at the time and place of delivery specified in the Contract. Unless otherwise stated in the Order, Buyer shall have no obligation to return package materials.
2.5 Quantity: Supplier shall provide full quantity of goods and services to arrive at destination on the date stated on the Contract or Purchase Order.
2.6 Payment terms: Payment terms shall be the terms agreed to per the Contract or Purchase Order.
2.7 INCO terms:
2.7.1: Ex-Works for Suppliers outside of the United States. Supplier is responsible for all packaging requirements for air or sea transport. Any solid wood packing materials must be treated and stamped per IPPC standards.
2.7.2: F.O.B Origin (Free on Board)/ Factory freight collect for Suppliers within the United States. Supplier is responsible for all packaging and loading requirements for safe transport.
2.8 Country of origin: For every purchased part the supplier will identify in writing the country of origin. Each part will also be clearly marked with the country of origin in accordance with U.S Custom’s regulations. Should the country of origin (sourcing) change for a purchased part, Schwing America shall be notified immediately. Supplier also agrees to identify any goods which might qualify for duty free treatment under the terms of any bilateral or multilateral trade agreement to which the United States is a party. Free Trade Agreement supporting documentation may be required upon request. Schwing America is a multinational company conducting business in many countries. Therefore, Schwing America and suppliers to Schwing America must comply with import and export laws and regulations.
3. CHANGE OR CANCELLATION OF THE ORDER
3.1 Buyer may at any time cancel, amend or change the Purchase Order prior to delivery of material or services. If such order amendment would result in a significant change in price or delivery date, Supplier must notify Buyer without delay of price and delivery change. The order amendment shall take effect, when the Buyer accepts the new price and delivery date by providing the Supplier with a revised Purchase Order.
3.2 In case Buyer cancels the Contract or Purchase Order Buyer will, upon receipt of a claim thereof by the Supplier, pay to Supplier the direct costs, which in the Buyer’s opinion were a reasonably foreseeable consequence of the cancellation, however in no event more than the price of cancelled delivery. If Supplier fails to submit a claim within thirty days of the date of Buyer’s notice of cancellation, Buyer shall have no further liability.
3.3 Contract or Purchase Order can be canceled by the Buyer without additional cost if the Supplier has not met on time delivery performance and/or Quality requirements. Seller cannot cancel the terms of the contract.
4.1 Supplier warrants that the Goods shall in every respect comply with any description, samples, drawings, plans and specifications referred to in the Contract and shall be free from defects in design, materials and workmanship, and the Goods shall be of satisfactory quality and fit and functioning for their particular purpose. Supplier warrants that neither the Goods nor Buyer’s use of them will infringe any patent, registered design, trade mark, copyright or other protected right (“Third Party Right”).
4.2 The Goods shall also be deemed defective if it deteriorates or any characteristic of it changes after the risk has passed (“Deterioration”) for reasons other than fair wear and tear or Buyer’s failure to comply with storing instructions issued by Supplier to Buyer prior to the delivery. This condition shall not apply if Deterioration is due to a third party (other than the Supplier’s sub-contractor or agent).
4.3 The delivery shall include all necessary instructions for the use, maintenance and installation. Supplier warrants that the Goods are manufactured, packed and sold in accordance with applicable laws and administrative regulations. Supplier acknowledges that the Buyer does not permit or condone the violation of any applicable domestic, foreign or international laws, rules or regulations; including, without limitation, any such laws, rules or regulations governing employment, labour and the environment. Supplier represents and warrants that it is not engaged in, and will not engage in, any unfair labour, wage or benefits practices that violate the laws or regulations of the country of manufacture or assembly of Goods or that involve unsafe and/or unhealthy labor conditions, the employment of child, uncompensated labor, discrimination based on race, gender, nationality, religion or other similar employment conditions. Furthermore, Supplier represents and warrants that it will follow the highest ethical standards and integrity whilst conducting business with the Buyer and is in compliance with, and will continue to comply with, all applicable laws, rules, regulations and standards, including, but not limited to, those pertaining to health and environmental matters and in particular the European Union regulation Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), in the conduct of its business and the manufacture and assembly of Goods.
5. SCHWING MATERIAL IDENTIFACATION
5.1 All parts and materials that are assigned a Schwing America material/part number must be identifiable and apply to the material/part by any of the following options. Adhesive labels, ID Tags, Laser print or Stampings (If either of these methods are used the indicated location must be approved by a Schwing Engineer and may be request on a print if applicable),
5.2 Materials/parts that are too small to apply Schwing America part numbers to must be identified with the Schwing America material/part number on the outside of the packaging that they are stored in via small bags, boxes, cases, etc. along with the contents quantity clearly visible and legible on the outside of the storage package.
5.2 All material being received shall have Schwing America Purchase Order number visible on the packing slip. In case of drop shipments from sub-tier suppliers, the SAI Purchase Order number shall be used to refer to the original material supplier responsible for the material shipment.
6. QUALITY CONTROL AND CODE OF CONDUCT
6.1 Supplier will maintain an inspection and quality system acceptable to Buyer and in reliance upon such system; Buyer has the right but no obligation to inspect the Goods. Supplier agrees to maintain authenticated inspection and test results for a period of ten (10) years after the expiration of the Contract.
6.2 Subject to Buyer’s reasonable prior request, Supplier shall permit Buyer to enter Supplier’s and its sub-suppliers’ premises to ensure compliance with the Contract.
7. REJECTION OF DELIVERY
7.1 In the event Buyer determines that the Goods do not conform to the Contract or are otherwise defective, Buyer shall have the right to reject the Goods, in whole or in part, regardless of whether the Goods have been paid for. Such defective Goods shall constitute a material breach of Contract, which shall entitle Buyer to terminate the Contract, without prejudice to any other right or remedy of Buyer under this Contract or law. Buyer may, but has no obligation to, provide Supplier a reasonable opportunity to replace the defective Goods at Supplier’s sole cost and expense. All storage and other costs related to the defective Goods shall be for the sole account of Supplier. Risk in the defective Goods shall at all times remain with Supplier. Buyer shall also be entitled to purchase the nearest equivalent goods elsewhere at Supplier’s sole cost and expense. Upon request, Supplier shall promptly return any payments made for the defective Goods under the Contract without any retention or offset whatsoever.
8.1 Payment terms may vary on an individual bases with each Supplier and will be indicated on the hard copy of the purchase order agreement. The payment term begins from the latter of (a) delivery in full of the Goods or Service in conformity with the Contract, or (b) receipt of invoice by the Buyer. Unless otherwise agreed, the invoice shall become payable only after the whole delivery has taken place. If the delivery is not in conformity with the Contract, Buyer is entitled to postpone payment until Supplier has provided full remedy or the matter is otherwise finally settled.
9. MANUFACTURING MATERIALS AND TOOLS
9.1 In the event Buyer provides Supplier with any tools, materials, drawings, specifications and other equipment or data (“Materials”) to be used by Supplier solely for the completion of the Contract, such Materials shall always remain Buyer’s property and shall be returned at request in good condition, normal wear and tear accepted. Materials shall be at Supplier’s risk and insured by Supplier at its own expense against the risk of loss, theft or damage, until returned to Buyer. Supplier shall ensure that the Materials are fit for the intended purpose. The Buyer directs the use, handling or destruction of surplus and scrap Materials.
10.1 Supplier shall defend, indemnify and hold Buyer and its affiliates harmless from and against all claims, liability, damages (including indirect, consequential, special, punitive and exemplary damages), loss, costs and expense (including legal expenses) claimed from, incurred or paid by or made, brought or awarded against Buyer or its affiliates as a result of or in connection with (I) the manufacture or sale of the Goods, (II) breach of warranty or Contract (III) negligence or willful misconduct, (IV) product liability (including liability arising out of personal injury or death or any damage to property caused by the Goods) or environmental liability, or (V) infringement of Third Party Right. 10.2 Supplier shall at its expense maintain liability insurance sufficient to satisfy any claim or liability arising out of manufacture, sale or delivery of the Goods or this Contract.
11.1 Supplier undertakes to keep secret all confidential information and business secrets disclosed by Buyer as well as price paid by the Buyer for the Goods and not to use the same for any other purpose than for the completion of the Contract. This undertaking survives the termination of the Contract.
12.1 No waiver by Buyer of any breach of the Contract by Supplier shall be considered as a waiver of any subsequent breach of the same or another provision. If any provision of the Contract is held to be invalid or unenforceable, the validity of the other provisions of the Contract shall not be affected. Supplier shall not assign, transfer or subcontract the Contract without prior written consent of Buyer.
13. GOVERNING LAW AND DISPUTES
13.1 The Contract shall be governed by and construed in accordance with the laws of the country where Buyer has registered place of business and any and all disputes arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall be held in English in the city where Buyer has its registered place of business.
Schwing America Terms and Conditions Rev 8/06/15
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