- PRICE QUOTATIONS AND TAX LIABILITY
- INSPECTION AND TESTING
- SUPPLY AND TRANSPORT
- TITLE OWNERSHIP
- INTELLECTUAL PROPERTY AND CONFIDENTIALITY
- LIABILITY AND INDEMNIFICATION
- FORCE MAJEURE
- BUYER’S DUTIES AND RESPONSIBILITIES
- GOVERNING LAW AND DISPUTE RESOLUTION
Terms and Conditions of Supply of Goods and Services
- In these Conditions:
- “BANI” means the Indonesian National Arbitration Body (Badan Arbitrase Nasional Indonesia).
- “Buyer” means the party buying Goods or procuring Services and shall include, if the context so permits, its agents or sub-contractors.
- “Contract” has the meaning ascribed to it in Condition 1.3 below.
- “Delivery Date” has the meaning ascribed to it in Condition 4.3 below.
- “Event of Force Majeure” has the meaning ascribed to it in Condition 10.2 below.
- “Goods” means products, consumable materials, equipment, equipment components, spare parts, software and other goods and materials supplied by the Supplier to the Buyer (including any exchanged products supplied by the Supplier as part of providing Services).
- “Law 30/1999” means Law No. 30 of 1999 concerning Arbitrations and Alternative Dispute Resolutions
- “Product” means a product owned by the Buyer to be the subject of a Service.
- “Purchase Order” means an order placed on the Supplier by the Buyer.
- “Purchase Price” means the price to be paid by the Buyer to the Supplier for the Goods and/or Services.
- “Services” means any services supplied by the Supplier to the Buyer.
- “Service Exchange” means the exchange of a product shipped by the Buyer to the Supplier with a new or refurbished Good of the same type.
- “Supplier” means PT Epiroc Southern Asia or Epiroc Group Company named on the Purchase Order.
- “Supply” means any supply by Supplier to Buyer including the supply of Goods and/or Services.
- “Taxes” has the meaning ascribed to it in Condition 2.3 below.
- These Conditions apply to and are deemed to be incorporated in all Contracts for the Goods nd the Services and, save where the Supplier and the Buyer have agreed to specific terms, shall apply to and prevail over all conditions endorsed on, delivered with or contained in the Buyer’s purchase terms, or any Purchase Order, or other documentation. No modification to these Conditions shall be valid unless in writing and duly signed by a person authorised by the Supplier. All Purchase Orders are subject to acceptance by the Supplier.
- Once accepted, the Purchase Order and these Conditions shall constitute the contract between the Buyer and the Supplier for the Supply and shall constitute the entire agreement between the Buyer and the Supplier in relation to the Supply (“Contract”).
2. Price Quotation and Tax Liability
- The Purchase Price quoted for:
- standard Goods and Services remain valid for 30 (thirty) days unless otherwise specified; and
- non-standard Goods and Services are estimates and may be increased without notice to the Buyer in the event of increases in the Supplier’s costs of:
- transport, labour and materials;
- handling of, and compliance with laws and regulations concerning hazardous materials;
- handling, delivery and shipping;
- energy or fuel; and/or
- any other costs of supply or of the Supplier’s performance arising between the time of quotation and the time of the Supply.
- The payment mechanism for the Purchase Price as referred to in Condition 2.1 above shall be in accordance with the provisions under Condition 5 hereof.
- The Purchase Price is exclusive of all applicable taxes and any other imposition, duty and levy whatsoever which may from time to time and at any time be imposed by the tax authorities in Indonesia (“Taxes”) on the Goods and Services. All Taxes shall be paid by the Buyer unless the Buyer provides the Supplier with an exemption certificate acceptable to the relevant taxing authority.
3. Inspection and Testing
- All Goods are inspected by the Supplier before being supplied to the Buyer and tested where appropriate.
- An additional charge will be made for tests or trial runs carried out at the Buyer’s request. In the event that
the Buyer does not attend such tests after 14 (fourteen) days’ notice, the Supplier will perform the tests and
the Goods will be deemed accepted in the Buyer’s absence.
4. Supply and Transport
- The Supplier will use its reasonable efforts to supply the Goods and the Services within the time requested in the Purchase Order and in any event within a reasonable period. For the avoidance of any doubts, a non-acceptance by the Supplier of the request for the Goods and Services in the Purchase Order shall not be deemed an event of default under the Contract.
- Unless otherwise agreed in writing, all shipments shall be made DDP (Incoterms 2010) the Supplier’s distribution facilities and/or repair/remanufacturing centers. Unless other delivery arrangements are agreed, the Supplier may, at the Buyer’s request and expense, arrange carriage and insure the Goods against normal transit risks to the value of the Purchase Price. Risk of damage to or loss of the Goods shall pass to the Buyer on the Supplier’s delivery of the Goods to the carrier. Should the Buyer carry out the transport of the Goods, the Buyer shall have in place all adequate transit insurance with insurers of good reputation to the value of the Purchase Price, and the Buyer shall ensure that the Supplier is noted as additional insured on this insurance. The risk of damage to or loss of the Goods shall pass to the Buyer in accordance with the agreed terms and the Buyer shall indemnify the Supplier against all loss of, or damage to, the Goods.
- The Buyer shall take delivery of the Goods in accordance with the delivery date specified in the Contract or at the latest 5 (five) days after the Supplier’s notification that the Goods are ready for delivery, whichever is the latest (“Delivery Date”). The Buyer will supply the Supplier with delivery instructions promptly on notification to the Buyer that the Goods are ready for shipment.
- The Buyer’s obligation to take delivery of the Goods as provided in the Contract constitutes a material obligation of the Buyer.
- Where the Goods to be supplied are new, the Buyer may request a deferral of the Delivery Date provided this request is in writing and made at the latest 6 (six) weeks prior to the due date of shipment. Supplier may accept or refuse, at its sole discretion, a request for deferral. Notwithstanding any other remedies available under these Conditions, should deferral of delivery be for a period longer than 14 (fourteen) days from the Delivery Date, the Supplier shall be entitled to charge the Buyer compensation amounting to at least 2% (two percent) of the Purchase Price per month of delay, to be paid by the Buyer within 30 (thirty) days of the issuance of the corresponding invoice. Deferral of the Delivery Date shall not in any case be for longer than 3 (three) months from the initial Delivery Date. Without prejudice to Condition 12, at the expiry of the 3-(three) month period, the Supplier shall be entitled to make arrangements for storage of the Goods at a place of its choice at the Buyer’s expense. In such case, the Supplier’s obligation to deliver the Goods will be deemed satisfied and the Buyer will be responsible for the risk of loss of, or damage to, the Goods, and for paying the Purchase Price.
- Where the Goods to be supplied are not new, or where the Supplier is to return a Product after it is serviced, the Buyer will supply the Supplier with delivery instructions promptly on notification to the Buyer that the Good or Product is ready for shipment. Should shipment or collection be postponed for more than 14 (fourteen) days after such notification, (i) the Supplier shall be entitled to make arrangements for storage of the Good or Product at the Buyer’s risk and expense at a place of its choice, (ii) The Supplier may charge the Buyer a compensation at the rate of 2%(two percent) of the Price per 14 (fourteen)-day period or part thereof from the date of such notification and the Buyer shall pay such amount within 30 (thirty) days of invoice, and (iii) the Supplier’s obligation to deliver the Goods or Product will be deemed satisfied and the Buyer will become responsible for the risk of loss of or damage to the Goods or Product and for paying the Purchase Price.
- In the case of Service Exchange, the Buyer must ship at its cost the product to be exchanged to the Supplier within 30 (thirty) days of the date of the relevant Purchase Order. Should the Buyer not comply with this obligation, (i) the Supplier may charge non-return compensation which shall be calculated at the rate of 2% (two percent) of the Purchase Price for each 14 (fourteen)-day period during which the Supplier has not received the product to be returned, with the non-return compensation being payable within 30 (thirty) days of the date of invoice by the Supplier and (ii) should delay in returning the product exceed 3 (three) months from the date of the relevant Purchase Order, the Supplier shall be entitled to terminate the Purchase Order or that part of the Purchase order related to the Service Exchange and the Buyer shall pay the price which would be due for the supply of a new Good of equivalent specification, less any amount already paid towards the Service Exchange. The Buyer shall pay within 30 (thirty) days after the date of invoice
- The parties agree that compensation and other expenses payable under the Conditions above are a genuine pre-estimate of the costs and losses which the Supplier would suffer from the Buyer not taking delivery of the Goods and/or for non-return of exchange product on the Delivery Date.
- In cases where a Product is received by the Supplier in respect of which no Purchase Order, or other written authority, is given to the Supplier to carry out the Services within 60 (sixty) days of receipt by the Supplier, the Supplier may, at its option, either return the Product to the Buyer or dispose of the Product as the Supplier thinks fit and the Supplier may charge the Buyer for, and the Buyer agrees to pay, all storage, return and/or disposal costs.
- The Buyer shall ensure and warrant that it shall comply with any applicable export or import laws, regulations or guidance and that it shall not import, export or re-export, directly or indirectly, the Goods, or other item related to the Goods, in or to (1) any country subject to an embargo under the laws of any country or under any international laws, including, but not limited to, Cuba, Iran, North Korea, Sudan and Syria and/or (2) any country for which an import or export/re-export licence or approval or certificate is required, without obtaining such licence or approval or certificate prior to importing or (re)exporting. The Buyer shall attach to all Purchase Orders the necessary information to permit the Supplier to commence its work, together with any import licence and/or permits or certificates, which may be necessary. The Supplier shall not be liable or be in default for delay in delivery or non-delivery of the Goods or any associated item due to (1) any restriction on the import or export of the Goods or any associated items or (2) non-compliance by the Buyer with this Condition or with the law, or (3) delay or refusal of export or import licence or approval by any relevant authority. The Supplier may request, and if so the Buyer shall provide, in advance and as a condition of delivery, a signed statement providing information related to the use of the Goods and any associated items and/or the full identity of the end-user or any intermediary in the transaction. Notwithstanding any other provision of the Contract, the Supplier shall be entitled to terminate the Contract with immediate effect and without liability if it has reasonable grounds to suspect that the Buyer has breached or intends to breach this Conditions.
- Goods will be supplied and paid for as available unless the Buyer specifically requests “one consignment”. Each shipment shall be considered a separate and independent transaction. The Supplier may suspend shipment of any unfulfilled Contract between the parties in the event of any act or omission on the part of the Buyer or if the Buyer is in material breach of the Buyer’s obligations under a Contract, whether separate or not.
- All Goods and Services supplied in accordance with the Contract will be deemed accepted unless the Buyer promptly notifies the Supplier in writing that the Goods or Services are not in compliance with the Contract. Any damaged Goods and packaging must be kept for inspection by the Supplier.
- The Supplier may modify the specification of Goods without notice provided that the modification does not materially affect the performance, form or fit of the affected Goods.
- Services, installation and commissioning are not included in the Purchase Price for the Goods, except otherwise agreed in writing by both Parties.
- The Buyer shall be responsible for de-installing, de-commissioning and shipment of any Product. The Supplier shall notify the Buyer following discovery of any such Product as unsuitable for the performance of Services.
- All amounts are stated and payments are to be made in Indonesian Rupiah unless otherwise agreed in writing and to the extent permissible by laws. If the Buyer specifies a different currency, the Supplier reserves the right to amend the quoted price by any amount to cover movements in the exchange rate between the relevant currency and Rupiah arising between the time of quotation and acceptance of the Purchase Order.
- The Purchase Price for the Services can be changed by mutual agreement of the Parties on consideration of the results of the annual evaluations of the implementation of the Services and/or in the event laws require changes in the Purchase Price for the Services, including but not limited to laws and regulations regarding minimum wages in any relevant area or business sector.
The Purchase Price for the Goods is subject to change and the Supplier will give notice from time to time if there is any change in the Purchase Price for the Goods based on a change of market prices and/or a change of price from the original distributor or original manufacturer, including but not limited to changes in the value of prices due to currency fluctuations (change of Bank Indonesia’s Middle Rate at the time of signing of the Contract).For the avoidance of doubt, the Purchase Price for the Goods will only be changed if there is a +/-5% (five percent) change in Bank Indonesia’s Middle Rate in the following month compared to Bank Indonesia’s Middle Rate prevailing at the time of signing of the Contract.
- Full payment without any deduction whatsoever must be made to the Supplier within 30 (thirty) days of the date of invoice unless otherwise agreed in writing. Invoices will normally be issued on the date of delivery of the Goods (or the date of deemed delivery) or completion of the Services. Any invoice disputes must be raised by the Buyer within 15 (fifteen) days from date of invoice, or the invoice shall be considered to be accepted by the Buyer. Time for payment shall be of the essence
- All Purchase Orders are subject to credit approval before shipment. If, in the Supplier’s judgment, the Buyer’s financial condition does not at any time justify payment terms as previously specified, the Supplier may cancel or suspend any unfulfilled Contract. The Supplier may require the Buyer to furnish the Supplier with a confirmed irrevocable letter of credit drawn on a bank acceptable to the Supplier.
- If any payment is overdue, the Supplier shall be entitled, without prejudice to any other right or remedy, to suspend all further deliveries to the Buyer without notice and/or to charge interest on any amount overdue at the applicable statutory default interest rate.
- The Supplier has the right to set-off any sum due by the Buyer against any sums due by the Supplier to the Buyer under any Contract.
6. Title Ownership
- Subject to Condition 6.2, Goods shall remain the Supplier’s property until the Buyer has made full and unconditional payment to the Supplier of all sums due to it in respect of the Goods.
- If the governing law of the Contract is Indonesian law, the provision in Conditions 6.1 shall not be applicable and the Parties shall adhere to the following terms and conditions:
- The title of the Goods will be transferred to the Buyer on its acceptance of the Goods delivered by the Supplier.
If the Buyer fails to perform its obligation to pay the Supplier the Purchase Price in full in accordance with the Contract or the Buyer is insolvent or bankrupt, the Supplier shall have the right to physically take and possess the Goods and take any necessary actions at any time, and by the execution of the Contract, the Buyer shall grant powers and authorizations to the Supplier to be the sole party which has rights to sell the Goods to any third party determined by the Supplier, to receive the proceeds of sale from the third party purchaser and then to use the proceeds of sale to settle the outstanding Purchase Price, or to do any actions the Supplier deems necessary for a settlement of the outstanding Purchase Price. If necessary and as requested by the Supplier, the Buyer must issue a separate written power of attorney to confirm and restate the grant of the powers and authorizations referred to in the Contract, the format of which shall be to the Supplier’s satisfaction.All powers and authorization granted by the Buyer to the Supplier under the Contract shall form an integral and inseparable part thereof without which the Contract would not be entered into by the Supplier and such power and authorization shall thus be irrevocable and not terminated for any reason including for the reasons established in Articles 1813, 1814 and 1816 of the Indonesian Civil Code (save for a refusal or waiver in writing by the Supplier)
The rights to take physical possession of the Goods mentioned in Condition 6.2 (b) above shall consist of any authorizations necessary to achieve the purpose set out therein, including but not limited to entering the premises of the Buyer or any of its affiliated parties, loading and transporting the Goods from the premises of the Buyer or any of its affiliated parties to any place designated by the Supplier, breaking any keys in locks, damaging fences, doors, gates so as to enable the Supplier to access the places where the Goods are kept by the Buyer and the Buyer hereby agrees that such actions to enter any places where the Goods are kept shall not be a considered an act of trespass (huisvredebreuk). The physical possession of the Goods can be taken by the Supplier directly and/or with assistance of the police and/or any other authorized institutions.The Buyer shall pay all costs and give all necessary support to the Supplier in connection with such physical possession of the Goods.
- Title to Goods remains with the Buyer unless it becomes the subject of Service Exchange in which case title passes to the Supplier upon receipt of the Product at the Service Centre.
- Any consignment stock, inventory or materials held at the Buyer’s site and owned by the Buyer for the use of the Supplier in carrying out the Services shall be at the risk of the Buyer
- Until payment in full by the Buyer, Goods shall be held by the Buyer as bailee for the supplier and will be kept, unaltered and in good condition (at no cost to the Supplier) separately from all other goods of Buyer or any third party in such a way that they remain readily identifiable as Supplier’s property.
- If any payment becomes overdue, or on the occurrence of any termination event referred to in Condition 12 below, the Supplier may, where permitted by law, and after giving notice to the Buyer, enter upon any premises where the Supplier reasonably believes Goods to be, or otherwise take action, to recover the Goods.
- From delivery and prior to full payment of the Purchase Price, the Buyer shall maintain the Goods in satisfactory condition and keep them insured under adequate insurance policies with insurers of good reputation, covering the Purchase Price.
7. Intellectual Property and Confidentiality
- The Supplier shall retain all right, title and interest in and to, and possession of, any know-how, technical information, drawings, specifications or documents, ideas, concepts, methods, processes, techniques and inventions developed or created by or on behalf of the Supplier and supplied by the Supplier under any Contract. All such information shall be kept confidential by the Buyer and shall not be disclosed to any third party unless and until the same is or becomes public knowledge nor shall any such information be used by the Buyer for any purpose other than for the purpose of using any Goods supplied under the Contract without the Supplier’s prior written consent.
- Ownership is retained for all time by the Supplier and/or the manufacturer of any patent, copyright, trade secret, design right or other intellectual property right in or relating to the Supply and the Buyer shall acquire no rights in or over such intellectual property rights save as expressly set out herein including, but not limited to, any technical information, know-how, drawings and specifications supplied by the Supplier or relating to the Supply.
- The Supplier’s trademarks and names and those of its associated companies shall not be used by the Buyer otherwise than as applied by the Supplier to the Goods, Services or associated documentation and the Buyer shall not at any time during the period of the Contract and after its termination either solely or jointly with or on behalf of any other person firm or company apply to register any of intellectual property rights used or owned by the Supplier or the manufacturer in any territories.
- In respect of supply of the Goods comprising equipment and related components, spares and parts:
- The Supplier hereby undertakes to repair or replace at the Supplier’s option, or to arrange repair or replacement by the Supplier’s representative of, any Goods supplied to the Buyer if a defect in materials or workmanship arises under conditions of normal and proper use and maintenance (fair wear and tear, and consumables excepted) provided that (i) the Goods were purchased and used for a purpose for which they were suitable, and therefore the warranty excludes misuse including, without limitation: neglect, improper operation, misapplication, overloading, accident or alterations not approved by the Supplier; (ii) were operated and maintained in accordance with the operating instructions, and therefore the warranty excludes operation of the Goods beyond their rated capacity or designed application; and (iii) unless otherwise agreed by the Supplier, in writing, the defect occurs within 12 (twelve) months from the date of shipment of the Goods; and (iv) Condition 8.3 is satisfied.
- Any repaired or replaced Goods (including Goods the subject of Service Exchange) will continue to be warranted for the unexpired period of the warranty referred to in Condition 8.1 A above.
- The Supplier will charge the Buyer for the cost of shipping the Goods to and from the Supplier’s service centre if the Goods to be repaired or replaced are located in a country in which the Supplier does not have a service centre.
- The warranty under this Condition does not cover the costs of installation or removal of the Goods to be repaired or replaced which shall be at the Buyer’s cost.
- The warranty under these Conditions shall not apply to the Goods if they have been subject to any circumstances beyond the control of any Party, including but not limited to strikes, acts of terrorism, riots, natural disasters, and other Events of Force Majeure.
- In respect of supply of the Services:
- The Supplier warrants that the Services shall be performed in a workmanlike manner using reasonable skill and care and in accordance with the Supplier’s service policy and practice. Unless otherwise agreed in advance, the Supplier shall provide such Services, including repair and replacement, as are in the Supplier’s reasonable opinion necessary in order to provide the Services.
- If subsequent to the performance of the Services failure or breakdown (fair wear and tear and consumables excepted) occurs: (a) during the warranty period notified to the Buyer at the time the Services are performed (or if no such period is notified to the Buyer, and unless otherwise agreed, within 90 (ninety) days of the date that the Services are completed); (b) during normal usage; and (c) shown by the Buyer to the Supplier’s reasonable satisfaction (after a reasonable opportunity for the Supplier to inspect the allegedly defective Services and to review documentation pertinent to the failure or breakdown) to have been caused by the Supplier’s failure to perform the Services in accordance with these Conditions: The Supplier, at its option, shall correct or re-perform the Service or replace the serviced product or refund the cost of the Services; provided that: (i) the failure or breakdown was not caused, or contributed to, by the Buyer’s act or omission, breach of contract, negligence, process reactions, excessive process build ups or accidents or by the Buyer’s failure to observe the Supplier’s recommended maintenance schedules and activities; and (ii) Condition 8.3 is satisfied. For the avoidance of doubt any components of a Product not replaced in the course of the Product being serviced will not be covered by the Service warranty on the Product.
- The Buyer is responsible for shipping Goods to the designated Supplier service centre at the Buyer’s risk and cost. The Supplier may charge the Buyer for the cost of shipping the Product from the Supplier’s service centre back to the Buyer if the Product is located in a country in which the Supplier does not have a service centre. If the Buyer requires a more expensive method of freight than the Supplier’s standard shipping then the extra cost shall be paid by the Buyer
- The warranty under these Conditions does not cover the costs of installation or removal of the Product which shall be at Buyer’s cost.
- Except as expressly warranted above, the Services are provided “as is” and the Buyer assumes the entire risk as to the results of the Services. Nothing stated in these Conditions implies that the operation of any serviced Product will be uninterrupted or error-free or that errors will be corrected. Other written or oral statements by the Supplier, its representatives, or others do not constitute warranties of the Supplier.
- The following provisions must be satisfied in respect of all claims under Conditions 8.1 and 8.2:
- the claim must first be notified promptly in writing to the Supplier;
- the Goods or any Product must not have been repaired or modified by anyone other than the Supplier or at the Supplier’s direction;
- in the case of equipment and related components, spares and parts not of the Supplier’s own manufacture, unless otherwise required by law, the Supplier’s responsibility shall be limited to passing on to the Buyer the benefit of any guarantee or warranty given to the Supplier by the manufacturer of such Goods or part;
- in the case of a replacement, the Buyer returns at its cost the defective Goods to the Supplier within 10 (ten) days of delivery of the replacement Goods by the Supplier;
- the defect does not arise from the Buyer’s specification or instructions;
- the Buyer has paid the Purchase Price in full or paid in accordance with the agreed payment schedule; and
- the warranty under these Conditions expressly excludes all liability for damages arising from loss of use or profits, incurrence of costs of loss of benefits or expenses or injury to business, credit, financial reputation and for all other direct or consequential damages.
- The Supplier may satisfy the Supplier’s liability under this Condition 8 by reducing the Purchase Price or refunding the Purchase Price and retaking the Goods or issuing a credit note.
- Except as expressly warranted above, all warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded.
- Standard warranty provisions for scope, conditions, periods, limitations, restrictions, etc for the Supplier and Fluidcon Products shall apply. Copy of the provisions will be provided to the Buyer upon request.
9. Liability and Indemfication
- The Buyer shall upon demand by the Supplier, fully indemnify, hold the Supplier harmless and keep the Supplier indemnified on a full cost basis (including but without limitation legal fees on a solicitor-client basis and disbursements) from and against any and all claims, demands, suits, actions, proceedings, fines, penalties, losses, costs, liabilities, and expenses (damages) which are brought against the Supplier or arising out of or in connection with any breach/violation of the prevailing regulations and rules which must be fulfilled by the Buyer (including its representatives, agents, subcontractors, directors, employees and officers) in relation to the Contract.
- Nothing in these Conditions excludes or limits the liability of the Supplier for liabilities that cannot be excluded or limited by laws.
- The Supplier shall not be liable to the Buyer for pure economic loss, loss of profit, loss of business, depletion of goodwill, loss of anticipated savings, injury to reputation, loss of revenue, interruption of production, any damages claimed to the Buyer by third parties, or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- If the Buyer fails to perform any of its obligations pursuant to these Conditions, the Buyer shall pay the Supplier all costs and expenses incurred by the Supplier, including all attorney’s fees, in enforcing the Supplier’s rights relating to such obligation, whether by formal proceedings or otherwise, in addition to any other remedy available to the Supplier.
- For the avoidance of doubt, save as provided in these Conditions, the Supplier shall have no liability in contract, tort, misrepresentation, restitution, or otherwise arising as a result of the performance or contemplated performance of the Contract.
- The Buyer will indemnify and keep indemnified the Supplier from and against any costs, claims, demands, liabilities, damages or losses and all interest, penalties and legal and other professional costs and expenses arising out of or in connection with the Buyer’s use of Goods or Services or the Buyer supplying Goods to any party who is not a party to these Conditions and the Goods’ subsequent use. This indemnity shall cover (but is not limited to) the Supplier’s liability to third parties arising out of the use or sale of the Goods or related to the Services.
- The Buyer will indemnify and hold the Supplier harmless against any loss, claim or damage suffered by the Supplier or its employees, agents or sub-contractors suffered on the Buyer’s site or the Buyer’s customer’s site, including those resulting from the breach of the Requirements.
- Terms and conditions of the Supplier’s general liability insurance shall be applied. Copy of the certificate policy will be provided to Buyer upon request.
10. Force Majeure
- The Buyer and the Supplier shall be entitled to delay or cancel performance of its obligations under the Contract to the extent that such performance is prevented or made onerous by an Event of Force Majeure.
- The term “Event of Force Majeure” means any circumstance not within the reasonable control of the Parties, directly or indirectly, of the Party affected, including but not limited to industrial disputes, fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, pandemics, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors or sub-suppliers caused by any such circumstance referred to in this section, but only if and to the extent that:
- such circumstances, despite the exercise of reasonable diligence, cannot be or cannot be caused to be prevented, avoided, or removed by the affected Party;
- such event materially adversely affects the ability of the affected Party to perform its obligations hereof and such Party has taken reasonable precautions, maintenance and alternative measures in order to avoid the effect of such event and to mitigate the consequences thereof;
- such event is not the direct or indirect result of the failure of the affected Party to perform its obligations; and
- the affected Party has notified the other Party promptly in writing describing the event, the effect thereof, and the actions being taken to comply with the prevailing requirements.
- Any knowledge of the outbreak of the Covid-19 pandemic or other viruses/diseases or the fact that it was existent at the time of entering into the Contract, or various temporary measures or regulations that governmental bodies or others may have implemented, or are likely to implement in consequence thereof, or any explicit measures agreed herein to try overcome the consequences of the outbreak, the outbreak of the pandemic Covid-19 or other viruses/diseases shall be regarded as an Event of Force Majeure. This implies that the Supplier is entitled to invoke the Event of Force Majeure with respect to any delay or non-delivery which is directly or indirectly caused by the Covid-19 pandemic, including but not limited to the effects of the outbreak of the Covid-19 pandemic or of other viruses/diseases, such as suspensions and other decisions issued by governmental bodies (including the imposition of production restrictions), restrictions on cross-border movement of goods, and temporary or permanent shut-down of plants and units due to a non-sufficient level of utilization.The other Party must be notified within reasonable time if an Event of Force Majeure situation arises. Neither Party shall however be obligated to provide a notification of the outbreak of the Covid-19 pandemic or other viruses/diseases unless and until a Party seeks to enforce the Event of Force Majeure clause as a result of the outbreak of the Covid-19 pandemic or other viruses/diseases.
- If an Event of Force Majeure occurs, the date of shipment or performance shall, at the request of the Supplier, be deferred for a period equal to the time lost by reason of the delay and otherwise for a reasonable time.
- The Buyer may request a cancellation of the Contract to the extent it relates to the sale of Goods, provided such request is given in writing and at the latest 6 (six) weeks prior to the due date of shipment. The Supplier may accept or refuse, at its sole discretion, a request for cancellation. Without prejudice to any other rights the Supplier may have, upon cancellation the Buyer shall pay the Supplier a compensation equivalent to 15% (fifteen percent) of the Purchase Price for standard Goods and 30% (thirty percent) of the Purchase Price for non-standard Goods within 30 (thirty) days from issuance of the corresponding invoice.
- Unless agreed otherwise in writing by the Supplier, should the Buyer cancel any Contract to the extent it relates to the sale of Services, the Buyer shall pay to the Supplier the costs of all work done and materials purchased or provided in connection with the Services up to the time of cancellation, plus compensation for all costs and losses equivalent to 15% (fifteen percent) of the Purchase Price.
- The Parties agree that sums payable to the Supplier under this Condition are a genuine pre-estimate of the costs and losses which the Supplier would suffer from the Buyer cancelling all or part of the Contract.
- If the Buyer is subject to any act of bankruptcy or, being a company, has a receiver appointed or an administration order made against it or goes into liquidation or if a similar event occurs under applicable insolvency laws (except for the purpose of reconstruction or amalgamation) then all sums due to the Supplier under the Contract shall immediately become due and payable and the Supplier may, notwithstanding any previous waiver, terminate the Contract forthwith by written notice in accordance with Condition 12.4 below.
- If Buyer fails to collect or take delivery of the Goods within 3 (three) months of the Delivery Date, the Supplier shall be entitled, without prejudice to its other rights, to terminate all (in accordance with Condition 12.4 below) or part of the Contract and to dispose of the Goods, and to charge the Buyer a compensation of 15% (fifteen) of the Purchase Price (standard goods) or 30% (thirty percent) of the Purchase Price (non-standard goods), to be paid by the Buyer within 30 (thirty) days of issuance of the corresponding invoice. The parties agree that sums payable to the Supplier under this Condition are a genuine pre-estimate of the costs and losses which the Supplier would suffer from the Buyer not taking delivery of the Goods.
- Any termination shall be without prejudice to any provisions (including but not limited to Conditions 6, 7, 9, 14.8, 14.9, 15, 16, and 17) which by nature shall survive termination.
- The Contract may be terminated:
- by either Party, if the other Party commits a serious breach of the Contract and fails to remedy such breach within 60 (sixty) days after notice in writing of the breach has been sent. Termination shall be made by notice in writing; or
- by either Party should the operational conditions change i.e. the rock, mine water conditions or any of the below mentioned conditions, as they were at the conclusion of the Contract, then terminate the Contract with 2 (two) months’ notice given in writing, without prejudice to the right of either Party to call for a review of the Purchase Price; or
- by the Supplier in the event of a failure by the Buyer to comply with any material provision of these Conditions and if the failure continues for more than 14 (fourteen) days after the Buyer has been given written notice of such failure; or
- by the Supplier if there is a default or delay by the Buyer in making payment, which is not remedied within 30 (thirty) days;
- by the Supplier if there are delays caused by the Buyer or its employees preventing the Supplier from carrying out the required activities within the scope of works described in the Contract; or
- by the Supplier if the event mentioned in Condition 12.1 occurs; or
- by the Supplier if the event mentioned in Condition 12.2 occurs; or
- by either Party without any reason given, with a minimum of 6 (six) months’ notice given in writing.
- Upon the effectiveness of termination of the Contract:
- each Party shall immediately take all possible action to mitigate any liabilities incurred by it as a result of such termination;
- the Buyer shall ensure payment of all pending dues to the Supplier and continue the payment of the Purchase Price until the termination date;
- the Supplier shall be entitled to compensation as per the scope of works, mobilization and demobilization under the Contract;
- if the termination is based on the breach of the Contract (concerning Services provision) by the Buyer, the Buyer shall pay damages to the non-defaulting Party; and
- all further obligations of the Parties under the Contract will terminate save for matters described in Conditions 12.3 and 12.6.
- Termination of the Contract will be without prejudice to the accrued rights and liabilities of the relevant Party at the date of termination (including the rights and liabilities resulting from such termination), unless waived in writing by agreement made by the Parties.
- In case of termination of the Contract, the governing law of which is the Indonesia law, the Parties hereby waive the provisions set forth in Articles 1266 and 1267 of the Indonesian Civil Code with regard to the requirement for court pronouncement of termination of the Contract.
13. Buyer’s Duties and Responsibilities
- Without prejudice to any other duties and responsibilities under the Contract, the Buyer has the following duties and obligations:
- the obligation to pay to the Supplier in a full and timely manner;
- the obligation to provide the documents and information which are necessary or required by the Supplier to perform and provide the Services and/or to deliver the Goods, including but not limited to all available operating documentation, drawings, test certificates and relevant maintenance inspection reports;
- the obligation to work together with the Supplier to make the Goods maintenance planning program and to give the planning data with the Supplier;
- the obligation to provide meals and accommodation (lodgings and transportation) to the Supplier’s maintenance staff while the staff is at the Buyer’s job site. The accommodation provided has to be equal to the Buyer’s standard;
- the obligation to use the Supplier’s original Goods as the first option for all of the scope of the Services;
- the obligation to provide the maintenance crew to work together with the Supplier’s technicians;
- the obligation to ensure that the Supplier has full access to the Goods which can be given to the Supplier at mutually agreed times to be able to carry out specific maintenance of the Goods which can be carried out according to the maintenance plan and/or provide repairs to the Goods to prevent consequential problems or damage;
- the obligation to provide all necessary access and cooperation to enable the Supplier to carry out a risk assessment;
- the obligation to cooperate with the Supplier to achieve work safety in accordance with the relevant site’s codes and train the Supplier’s employees where necessary regarding the implementation of codes and standards suitable for the relevant industry;
- the obligation to provide the Supplier with all available operating documentation, drawings, test certificates and maintenance inspection reports relating to any Goods.
- without prejudice to any other matters that must be provided by the Buyer pursuant to the Contract, the obligation to give full assistance as needed by the Supplier to perform and complete the Services.
- All Goods and environments (whether at the Supplier’s or the Buyer’s or the Buyer’s customer’s premises) must be free from risks to health and safety (save to the extent notified to, and specifically accepted by, the Supplier in writing). The Supplier may decline, without incurring any liability, to service any Goods, or work in any environment in which, in the Supplier’s opinion, the risks to health and safety are not managed satisfactorily by the Buyer.
- The Buyer will permit the Supplier prior to commencement of any Services to assess the condition of the Goods and the working environment. The Supplier shall be under no obligation to service any Goods which, in the Supplier’s reasonable opinion, have been used in a way or for a purpose for which they were not suitable, have not been operated and maintained in accordance with the manufacturer’s operating instructions, are too old or in too poor a condition to be serviced economically or is in any way unsafe.
- The Buyer may neither assign nor transfer nor deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
- Save as expressly provided, no term or provision of these Conditions shall be enforceable by a third party (being any person other than the parties and their permitted successors and assignees).
- No waiver by either Party of any breach of any of these Conditions by the other Party shall be deemed to constitute a waiver of any other breach nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. A waiver given by a Party hereunder shall be binding upon such Party only if in writing and signed by such Party. In the event that any term or provision of the Contract is declared null and void or unenforceable by any court of competent jurisdiction, the remainder of the provisions of these Conditions shall remain in full force and effect to the fullest extent permitted by applicable law.
- Nothing contained in these Conditions shall be deemed to require the Supplier to take any action that would constitute, directly or indirectly, a violation of any laws of any applicable jurisdiction, and the Supplier’s failure to take any such action shall not be deemed a breach hereunder.
- All drawings, descriptive matter, technical specifications, capacities, performance rates, descriptions and other particulars given in respect of Goods (whether in catalogues or advertisements or accompanying or referred to in the Contract) are stated by the Supplier in good faith based on the Supplier’s experience as being correct within acceptable tolerances but are not binding in detail and do not form part of the Contract unless specifically stated to do so. Unless agreed otherwise in writing, it is the Buyer’s responsibility to ensure that Goods are sufficient and suitable for the Buyer’s purposes.
- The Buyer hereby acknowledges that relevant safety and training literature relating to the Goods and Services will be supplied by the Supplier to the Buyer free of charge and may be photocopied by the Buyer as required. The Buyer shall be fully responsible for the implementation of the contents of all safety and training literature provided by the Supplier. The Buyer shall ensure persons who use, maintain or otherwise handle Goods or receive Services receive adequate safety and training literature.
- The Buyer shall comply at all times with the Supplier’s code of conduct which can be found at our website or upon request to the Supplier and with all applicable laws, statutes and regulations, in particular those related to anti-bribery and anti-corruption, as amended from time to time (the “Requirements”), and the Buyer shall have in place and shall maintain at all times its own policies and procedures to ensure compliance with the Requirements by the Buyer’s employees, officers, representatives, subcontractors and customers and shall enforce them where appropriate. The Supplier shall be entitled to terminate the Contract immediately upon written notice to the Buyer if the Buyer or any person employed by it or acting on its behalf commits or may be deemed or is suspected to have committed or intends to commit a breach of the Requirements. If the Buyer suspects or knows that there is any breach or intended breach of the Requirements by the Buyer or any person employed by it or acting on its behalf, the Buyer will notify the Supplier immediately.
- Each Party agrees to hold the Contract and all confidential information obtained in connection with this Contract or any documents to be executed pursuant to the Contract confidential and not to disclose the Contract, any documents to be executed pursuant to the Contract or such information to third parties without the prior written consent of the other Parties hereto. The foregoing obligation shall not apply to the extent:
- the information being disclosed is or has become publicly known or known to third parties at the time of disclosure through no fault of the disclosing Party;
- the information was generated independently by the third party before disclosure by the disclosing Party; or
- disclosure is or become required by applicable laws and regulations or legal process, including pursuant to court proceedings, court order, or governmental regulations, or otherwise.
- These Conditions constitute 1 (one) document and an inseparable part of the Purchase Order accepted by the Supplier and take into effect immediately without the need of the Parties to affix their signatures herein.
15. Governing Law and Dispute Resolution
- The Contract and any claim arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Republic of Indonesia.
- The Parties have in good faith agreed that all disputes arising from or in connection with the Contract shall first be settled in an amicable manner.
- If after 30 (thirty) days, such amicable settlement as referred to the above cannot be achieved, the Parties agree that any dispute or claim arising out of or in connection with or relating to the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under BANI, which is currently located at Wahana Graha Lantai 1 & 2, Jalan Mampang Prapatan No. 2, Duren Tiga, Pancoran, RT.4/RW.1, Duren Tiga, Pancoran, Kota Jakarta Selatan, DKI Jakarta 12760, in accordance with the arbitration rules of, for the time being in force. The Tribunal shall consist of 3 (three) arbitrators. Each Party shall appoint 1 (one) arbitrator. The language of the arbitration shall be the English language.
- This Condition 15.2 is intended to be an arbitration clause within the meaning of Law 30/1999 and shall irrevocably bind the Parties to submit all irreconcilable disputes to final and binding arbitration in accordance with such law and the provisions herein set forth.
- The arbitral award rendered shall be final, binding and incontestable and may be used as a basis for judgment thereon in Indonesia or elsewhere. The Parties expressly agree to waive Articles 48 paragraph (1), 70 – 72 of Law 30/1999 so that the mandate of the arbitrators duly constituted in accordance with the terms of the Contract and these Conditions shall remain in effect until a final arbitration award has been issued by the arbitrators.
- Fees for resolving disputes and charges shall be determined based on the arbitrators’ decision and BANI’s procedural regulations.
- During the period of submission to arbitration and thereafter until an award is granted, each Party shall continue to perform all of its respective obligations under the Contract without prejudice to a final judgment in accordance with the award.
- The Contract is made in the Indonesian language and the English language. Both versions are equally authentic. In the event of any inconsistency or different interpretation between the Indonesian language version and the English language version, the English language shall prevail and the relevant Indonesian language version is deemed to be automatically amended (with effect from the date of the execution of the Contract) to make the relevant part of the Indonesian language version consistent with the relevant part of the English language version.
- Without limiting the effect of Condition 16.1, the Parties agree that, at the request of any Party, the Parties will execute a formal amendment to the Indonesian language version to make it consistent with the English language version (with effect from the date of execution of the English language version) within a period of 30 (thirty) days after such a request is made.
- The costs and expenses in relation to the preparation and execution of any amendment of the Indonesian language version to conform with the English language version shall be borne equally by the Parties.
- Each Party:
- acknowledges that, with its agreement, the Contract has been predominantly negotiated in the English language;
- represents that it has read and fully understands the contents and consequences of the Contract;
- represents that it has made and entered into the Contract freely and without duress; and
- represents that it has received independent legal advice with regard to the Contract.
All notices, requests, demands and other communications which are required or may be given under the Contract shall be in writing and shall be sufficient in all respects (a) if delivered personally or by facsimile transmission to the facsimile number set forth below or electronic mail addressed set forth below, when so delivered, or (b) if given by a courier service, 4 (four) days after the date delivered to such courier, delivery charges prepaid, in each case addressed as follows:If to the Supplier, to:
PT Epiroc Southern Asia
Address: South Quarter Building, Tower C11th Floor Unit H, Jl. R.A. Kartini Kav. 8,
Cilandak Barat, Jakarta Selatan 12430, Indonesia
Phone: +62 21 22722212
Facsimile: +62 21 22722214
Email: email@example.comIf to the Buyer, to: the Buyer’s address based on its legal domicile
- Either Party shall notify the other Party 7 (seven) days before its address changes. Any loss due to delay in notice shall be borne by the Party at fault.