General Terms and Conditions for Purchase and Services
1. General/ Definitions
1.1 These General Terms and Conditions (“GTCs”) shall apply in place of any terms and conditions, especially general terms and conditions for Purchase and Services of the Supplier. In the event of conflict between these conditions and those of the said purchase order or specific purchasing agreement, the latter shall prevail.
1.2 Different terms and conditions of the Supplier shall only apply if and to the extent expressly acknowledged by the Purchaser in writing. The Purchase’s silence regarding such different terms and conditions shall not be deemed in particular to be acknowledgement or consent.
1.3 Purchaser means Erma First ESK Engineering Solutions S.A.
2. Purchase Orders/ Change request
2.1 Purchase orders and their modifications shall only be valid when given in writing. Under specific circumstances, phone orders or modifications may be placed prior to the ones in writing. The Supplier must return to the Purchaser with an order confirmation including the below mandatory fields: Item No., Qty, Price, Discount, Delivery date.
2.2 Purchase orders shall be deemed accepted if the Supplier does not contradict them in writing within 3 calendar days. The Purchaser may modify or cancel an order at any time by giving written notice to the Supplier. With the exception of payment of any goods already delivered, the Purchaser shall be free from all the other liabilities or obligations under the purchase order cancelled.
2.3 The Purchaser shall have the right, also after conclusion of the contract, to request changes to the delivery item and/or object of the service.
3. Implementation of contractual relationship
3.1 The Supplier shall provide its services in its own name and for its own account as independent entrepreneur. The Supplier shall not be authorized to represent the Purchaser in any transaction. The Supplier is not a representative of the Purchaser.
3.2 In performing its activities, the Supplier shall not be subject to the instructions of the Purchaser and its employees. An employment relationship between the parties shall not be created.
3.3 If documents for the use of the service covered by the contract are required, the Supplier shall deliver them to the Purchaser, even if this is not expressly agreed.
3.4 The Supplier is obliged to insure and keep insured throughout the term of the Agreement all the personnel (which will be occupied on the implementation of this Agreement and which the Supplier will have engaged himself in his name and on his own behalf) at EFKA or at any other Social Security Organization of primary and supplementary insurance. The Purchaser is not related in any way with the personnel of Supplier, is not obliged to pay any amount for any reason and cause in any of the workers and employees of the Supplier and the Supplier is obliged to compensate without delay the Purchaser if the Purchaser, in spite of the above agreed, will be obliged to pay any amount.
3.5 The Supplier and / or his subcontractor are required to supply their employees with a copy or extract of the Staff Board when they work outside their business premises.
4. Delivery/Passing of risk/Packaging material/ Acceptance of work
4.1 Unless otherwise agreed, the Supplier’s deliveries shall be deemed delivered duty paid (DDP Incoterms 2020) to the agreed recipients including packaging. The Supplier shall agree the means of transport with the Purchaser. The Supplier shall unload the delivery item at the place of delivery and bring it into the place of delivery.
4.2 According to the agreed DDP Incoterms 2020, the risk shall pass upon delivery of the item. Notwithstanding this, the risk in the case of deliveries, which also include the assembly or installation of the item and other services that require acceptance, shall pass upon acceptance.
4.3 In cases of a delivery or service. where the quality of a delivery or service is not in compliance with the contract, the Supplier shall notify the Purchaser immediately in writing. This shall also apply even if the Supplier is not responsible for the delay in delivery and/or service. Acceptance of a delayed delivery/service shall not be deemed a waiver of claims for damages.
4.4 The Supplier shall deliver the works on the agreed date of delivery according to the agreed requirements. If a delivery date is not agreed, the works shall be accepted after their completion and the acceptance test.
5. Invoices and payments
5.1 Payments shall be made, unless otherwise agreed in Purchase orders, after 90 calendar days net from the end of the invoicing month. The term of payment shall begin as soon as the delivery or service is provided in full (and, in the case of works, was accepted by the Purchaser) and the duly issued invoice has been received by the Purchaser. An invoice shall only be deemed duly issued if it states the Purchaser’s purchase order number. Original invoice must be sent by courier not later than two (2) days after goods shipment to Erma First. The Purchaser reserves the right to suspend payments to the Supplier, until all the terms and conditions of the purchase order have been observed.
5.2 Payments shall not constitute any acknowledgement by the Purchaser that the delivery or services comply with the contract.
5.3 The Purchaser shall pay the Supplier the agreed amount after the services have been provided correctly and within the prescribed time.
5.4 The agreed remuneration shall cover all the services to be provided by the Supplier and other expenses connected therewith unless otherwise agreed.
5.5 Travel expenses shall only be reimbursed if agreed in writing. They shall only be reimbursed when duly invoiced and copies of supporting documents are submitted. Exceptions to this shall require the prior written consent of the Purchaser.
6.1 The warranty period of 24 months for production components shall commence upon delivery of the Erma First system in which the components were integrated to the end customer (or 36 months after the risk passes to the Purchaser). In all other cases upon the passing of risk in the case of purchase contracts and the acceptance of the service in the case of contracts for works or deliveries with assembly and/or installation.
6.2 In case of defects, the Supplier shall be liable for the duration of the warranty period and the Purchaser shall have the right at its option to request replacement, remedy of defects or a reasonable price reduction and to request damages instead of performance.
6.3 In urgent cases (e.g., to prevent interruption of production), the Purchaser shall have the right to remedy the defects determined itself at the Supplier’s expense without fixing a deadline.
6.4 The Supplier shall bear the costs and risk of returning defective delivery items.
6.5 In cases of partial or subsequent fulfilment the Supplier bears all expenses necessary for the purpose of partial or subsequent fulfilment, in particular but without limitation transportation costs, travel costs, labor costs and the cost of materials as well as costs of removal and subsequent reinstallation.
6.6 Supplier must conform with Inventory of Hazardous Materials (IHM) rules and regulations by providing the following forms prior any transaction:
(a) Supplier’s Declaration of Conformity for Material Declaration Management.
(b) Material Declaration. The forms must conform with:
(b.i) MEPC.269(68)-2015, Guidelines for the development of IHM, Edition 3 5/15/2015.
(b.ii) SR CONF 45, International Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships, 15 May 2009.
(b.iii) Regulation EU No. 1257/2013, Ship Recycling and amending Regulation EC No. 1013/2006 and Directive 2009/16/EC, Edition 1 11/20/2013.
(b.iv) EMSA IHM Guidance, EMSA’s Best Practice Guidance on the Inventory of Hazardous Materials, 28 Oct 2016
6.7 The Supplier further warrants the conformity of the delivery item with the essential requirements and assessment procedures stipulated in European Community legislation for the delivery item. Proof of this must be certified according to the Greek legislation for the Product safety resp. EC Machinery Directive by written EC declaration of conformity or manufacturer’s declaration (depending on the type of application) in Greek or English and by the delivery item bearing the CE marking. Supplier must hold a valid and up to date Marine Type Approval from an IACS member classification society and IECEx certification for explosion protection where applicable.
7. Incoming goods inspection/ Non-performance or defective performance / defects
7.1 The Purchaser shall inspect immediately after receipt of the deliveries in order to verify whether they correspond to the ordered quantity and the ordered type and whether there are any visible transport damages or visible defects. Notice of obvious defects must be given within 2 weeks of receipt of the delivery/service, notice of hidden defects immediately after their discovery.
7.2 If a defective delivery results in the necessity for a higher than is customary level of control for incoming goods in terms of defects, quality or deviation from the agreed characteristics, the Supplier shall bear the costs for this.
7.3 In the event of non-performance or defective performance and/or a defective service (“defect”), the Supplier shall, at the Purchaser’s option, at its own expense within a reasonable period either remedy the defect or provide its services again free of defects. If the Supplier fails to remedy the defect within a reasonable additional period or fails to provide the services again free of defects, the Purchaser can rescind the contract or reduce the remuneration appropriately or remedy the defect or have it remedied at the Supplier’s expense and request damages instead of performance.
8. Property rights/ Work results
8.1 The Supplier warrants that the delivery items and services which have been provided based on Contract agreement, are free of third-party rights. The Supplier shall indemnify the Purchaser against third-party claims for infringement of property rights.
8.2 If the Purchaser and resp. its customers is (are) prohibited from manufacturing and/or delivering due to infringement of a property right, the Supplier shall make good the damage incurred by the Purchaser.
8.3 The Supplier shall deliver all work results to be provided according to the order to the Purchaser. “Work results” are all results and findings including protectable results which are realized when the Supplier and/or a third party commissioned by the Supplier provides the ordered services, in particular the works, intermediate and/or by-product results, objects, concepts, graphics, sketches, reports, documents, software and their source code to be created.
8.4 The Purchaser shall also be entitled to the irrevocable, exclusive right, which can be transferred and sub-licensed, without restriction in time, space and content, to use the work results itself or have them used in any way by third parties, to reproduce, modify and also to publish or exploit them in a form processed by it. All rights to the work results granted and assigned by the Supplier to the Purchaser within the scope of this contract and rights resulting therefrom, including property rights which may be based on these rights, shall be covered by the remuneration due under the contract.
9. Business liability insurance and product liability insurance
The Supplier undertakes for the duration of the contractual relationship to conclude an appropriate business liability insurance and product liability insurance and to maintain them for at least 5 years after the contract ends.
10. Tools, molds, samples etc.
Samples, models, profiles, drawings, test specifications, standard specification sheets, art work masters and gauges provided by the Purchaser as well as objects manufactured according to them may not be passed on to third parties nor used for purposes other than the contractual purposes without the Purchaser’s written consent. They must be protected against unauthorized inspection and use. Subject to further rights, the Purchaser can request their surrender, in particular if the Supplier violates these obligations.
11. Non-disclosure, return of documents.
11.1 The Supplier shall treat the conclusion and results of the contract, business transactions and the know-how and experience in providing the services acquired from and about the Purchaser or other information (“Information”) obtained within the scope of the business relationship as secret with respect to unauthorized third parties as long as and if this has not lawfully entered the public domain unless a legal or official obligation to disclose exists or the Purchaser has consented in writing to Information being passed on in an individual case. The Supplier shall use this Information exclusively for the purposes required to provide the services. This obligation of secrecy shall also survive termination of the contractual relationship for a period of 10 years.
11.2 The Supplier undertakes to keep safe all property of the Purchaser in its possession, in such a way that they cannot fall into the hands of unauthorized third parties. All documents must be delivered to the Purchaser at any time upon request, at the latest when the contractual relationship ends without being requested to do so or destroyed. In the case of data transmitted to the Supplier by the Purchaser, the Purchaser shall also have a right against the Supplier for the Supplier to make a declaration to cease and desist with a penalty clause for the benefit of the Purchaser.
12. Foreign trade
The Supplier shall be obliged to notify the Purchaser in writing of any permit requirements relating to the (re-)export of the products according to national, European, US export and customs regulations, applicable to the contractual relationship, and of export and customs regulations of the country of origin of the products. For this purpose, the Supplier shall provide the Purchaser with all necessary information. This includes in particular but is not limited to: (i) all relevant export list numbers; (ii) the Export Control Classification Number (ECCN) of the U.S. Commerce Control List if the products fall within the scope of the U.S. Export Control Administration Regulations; (iii) the customs tariff number according to the current commodity classification of foreign trade statistics and the HS Code (Harmonized System); (iv) declaration of origin (non-preferential origin) of each product ; (v) the Supplier’s declaration on the preferential origin for suppliers from the European Union (if requested by the Purchaser); (vi) preference certificates for non-European suppliers (if requested by the Purchaser). At the Purchaser’s request, the Supplier shall be obliged to provide all other foreign trade data relating to the products to be delivered according to the contract and their components in writing and notify the Purchaser immediately (before delivery of the products accordingly concerned) in writing of any changes to the above data.
13. Force majeure
Force majeure, operational disruptions through no fault of the Purchaser, unrest and other unavoidable events shall entitle the Purchaser, irrespective of its other rights, to rescind the contract in whole or in part provided such events are not of insignificant duration (i.e., persist for longer than 1 week) and the Purchaser notifies the Supplier of the event immediately. Should one of the parties notify the other of the existence of force majeure, the Purchaser shall be entitled to cancel the purchase order and to stop the supply of all goods still undelivered, giving written notice of the same to the Supplier. With the exception of payment of any goods already delivered, the Purchaser shall be free from all the other liabilities or obligations under the purchase order thus cancelled.
The Supplier shall have the right to assign the claims and other rights only with the prior written consent of the Purchaser.
15. Place of jurisdiction, applicable law
15.1 Any disputes arising hereunder shall be settled exclusively before a competent Piraeus court of law, Greece.
15.2 The contractual relationship is governed exclusively by the laws of Greece, to the exclusion of conflict of law provisions and the uniform United Nations Sales Convention (CISG).