O-I Standard Terms and Conditions of Purchase (China)
The following words have the following meanings:
“Consequential Loss” means loss of profit; loss of revenue; loss of opportunity; loss of actual or anticipated savings; loss of goodwill; any exemplary, punitive or special damages; any indirect or consequential losses, compensation costs, legitimation fees, attorney fees, notarial fees, appraisal costs and other costs.
“Drawings and Data” means all written materials (including drawings and blueprints), samples, specifications and any other information relating to the Goods or Services or based on which Goods or Services are commissioned by Purchaser.
“Goods” includes all products, materials, plant, equipment or other items to be supplied pursuant to an Order.
“Order” means a written order for the supply of Goods and/or Services made by Purchaser.
“Purchaser” means O-I (Tianjin) Glass Container Co., Ltd. or O-I (Zhaoqing) Glass Container Co., Ltd.
“Supplier” means the person, firm or corporation from whom Goods and/or Services have been ordered.
“Services” means the performance of all work to be performed pursuant to an Order and the supply of labour, drawings, data and other items required for work to be performed in accordance with commissioning of the Goods.
“Taxes” means any government taxes, levies, charges, duties or withholdings (excluding VAT) which are assessed, levied, imposed or collected by any government body in any jurisdiction and includes, but is not limited to, any interest, penalties, fines, charges, fees or other amounts imposed on, or in respect of, any of these.
“VAT” means the Value Added Tax in the People’s Republic of China.
1. The Purchaser may place an Order in its sole discretion. Any Order accepted by the Supplier is an acceptance on these terms and conditions and the terms in the Order notwithstanding any terms in the Supplier’s acceptance or Supplier’s documentation, unless expressly agreed to by the Purchaser in writing. The Supplier will be deemed to accept an Order unless it notifies the Purchaser in writing otherwise within 7 days of the Order.
2. Supplier shall not sub-contract or assign all or any part of an Order without Purchaser’s prior written consent.
3. The Supplier shall ensure that the Goods supplied pursuant to an Order strictly conform to the Purchaser’s specifications, are fit for purpose, of merchantable quality and comply with any applicable statutory warranties and that the Services shall be rendered with all due care and skill and according to industry best practice. This condition shall apply notwithstanding inspection of the Goods or Services by the Purchaser. If a sample of the Goods has been provided then there shall be a contract for sale by sample as well as a contract for sale by description.
4. The Purchaser may inspect Goods and monitor performance of Services covered by an Order while in any stage of engineering, manufacture or installation (including inspecting where the Goods are produced or stored by Supplier and documents relating to the production of the Goods) for the purpose of ensuring that the Goods are being produced in accordance with the Purchaser’s requirements. All Goods received by the Purchaser will not be accepted by the Purchaser until the Purchaser has inspected and approved such Goods, within a reasonable time after delivery. The Purchaser may reject Goods or Services (including work in progress) which are unsatisfactory, defective or fail to meet the Purchaser’s specifications or if there is a shortfall of the Goods. The Purchaser may in its discretion either require the Supplier to (i) remedy, re-perform or re-supply the rejected Goods or Services at the Supplier’s expense; or (ii) pay the cost of the replacement, repair or the acquisition of equivalent Goods or Services. Return of non-conforming Goods to the Supplier will be at the Supplier’s expense.
5. Supplier shall provide Drawings and Data on request by Purchaser. Notwithstanding any review or approval of such Drawings and Data by Purchaser, Supplier remains responsible for full compliance with Purchaser’s design criteria, specifications and other requirements regarding Drawings and Data.
6. Purchaser may at any time issue written instructions requiring changes or alterations in the specifications or work to be performed under an Order. If the Supplier considers that any modification by Purchaser will adversely affect the performance, quality, durability or safety of the Goods, the Supplier must immediately advise O-I in writing, providing reasons for its concerns. Within seven days after the receipt of the instructions, Supplier shall furnish to Purchaser, a statement in detail of the firm fixed net increase or decrease in cost resulting from its compliance with the instructions. The Purchaser may seek evidence from the Supplier to substantiate any change in costing. If acceptable to the Purchaser, the Purchaser shall issue a change Order to cover the agreed variation in cost. If the parties cannot agree to a revised costing, the Purchaser may cancel the original Order and the Purchaser’s liability will be limited in accordance with clause 17.
7. The prices stated in any Order are (i) inclusive of VAT; and (ii) inclusive of all Taxes, delivery and packaging charges. The prices stated in an Order accepted by the Supplier are fixed, save that any reduction in price resulting from a reduction in Taxes or VAT from those in force at the date of placing the Order, is to be passed to the Purchaser.
8. If VAT is payable on any taxable supply made pursuant to this document or an Order made under it by one party to the other party, the other party must pay to the party making the taxable supply the amount of the VAT, subject to receipt of a valid tax invoice.
9. Any Taxes arising in connection with an Order must be borne by the Supplier
10. Delivery of the Goods and the Service must be made at the Purchaser’s address shown on the Order or as otherwise directed by the Purchaser on a working day between 8.00am and 3.30pm. Any delivery date shown on an Order shall be of the essence. Delivery must be in strict accordance with the Order and any early or late deliveries or quantities delivered in excess of that specified on the Order may be returned by the Purchaser at the Supplier’s risk and expense. If delivery is not made within the time specified, the Purchaser may cancel an Order without penalty and the Supplier will be liable for any loss, including Consequential Loss, arising as a result of failed or late delivery.
11. Supplier shall ensure that all Goods are suitably packed and labelled for delivery to the satisfaction of the carrier.
12. The Supplier shall:
(a) ensure that it, its personnel and sub-contractors on the Purchaser’s premises abide by the site rules and regulations and all reasonable directions of Purchaser;
(b) be solely responsible for the safety of its personnel, equipment and materials on the Purchaser’s premises and provide immediate notice and a written report in case of any event at the Purchaser’s premises which results in any loss, damage or injury;
(b) comply with all applicable laws, obtain all permits and licences necessary to perform an Order and not cause the Purchaser to be in breach of any applicable laws because of the execution of an Order;
(c) provide the Purchaser with a ‘Material Safety Data’ sheet for the Goods (including any updates from time to time);
(d) procure at its cost all products and equipment required to adequately provide the Services; and
(e) ensure that it does not restrict, limit or affect operations at the Purchaser’s premises.
13. (a) Subject to paragraphs (b) and (c), Goods are purchased on the following basis unless otherwise specified in an Order:
(i) Goods purchased from PRC Suppliers are purchased on a “free into store” basis; and
(ii) all other Goods are purchased on a “Delivery Duty Paid” basis, as defined in INCOTERMS 2010.
(b) Risk in and title to Goods shall not pass to the Purchaser until delivery has been effected in accordance with this Order by the signing of a delivery docket by the Purchaser. Supplier agrees that the Purchaser may sell the Goods before the Purchaser makes payment for those Goods to the Supplier. The Supplier warrants that the Goods are free of encumbrances and that it will not register any security interest in respect of the Purchaser, its business or Goods supplied to it.
(c) The Supplier shall be responsible for all costs and expenses relating to
(i) inspections necessary to deliver Goods in accordance with this Order; and
(ii) obtaining all relevant export and import licences in respect of the Goods and any other customs or import or export duties and fees.
14. The Purchaser shall pay the Supplier undisputed amounts which have been validly invoiced within the time period for payment agreed between the Purchaser and the Supplier. The Purchaser may set-off any moneys which become due or payable by the Supplier to the Purchaser and any claims that the Purchaser has against the Supplier.
15. Invoices must set out the following details:
(a) Order number and Supplier’s packing slip number; (b) quantity and description of Goods delivered; and (c) aggregate price of the Goods delivered.
The Supplier’s delivery docket number is required for each individual Order and delivery, and shall be mailed to the Purchaser not later than the day of despatch of the Goods. AII Goods shall be accompanied by original delivery dockets and packing slips.
16. The Purchaser and Supplier must promptly notify the other party if the Goods are subject to: (i) a mandatory recall order or direction; or (ii) a proposed voluntary recall, in which case the party undertaking the recall must provide the other with at least 5 days’ notice. The party receiving notice must cooperate and assist the other party and will comply with all reasonable directions. The Supplier will bear the costs of any recall, including Consequential Loss, to the extent that the recall is necessary due to any act or omission of the Supplier.
17. (a) Without limiting clause 6, the Purchaser may at its option vary, modify or cancel an Order at any time prior to delivery of Goods or performance of Services and the Supplier shall immediately do everything possible to mitigate any costs that arise. The Purchaser’s liability shall be limited to the direct and unavoidable costs incurred by the Supplier to the date of cancellation and the Purchaser shall not be liable for any Consequential Loss as a result of the variation, modification or cancellation of an Order.
(b) The Purchaser may terminate an Order without penalty where the Supplier becomes insolvent or unable to pay its debts as and when they fall due for payment.
(c) The Purchaser shall not be liable for any failure in performance which is caused by the Purchaser’s inability to obtain an import licence or other government prohibition in the country of destination and the Purchaser may terminate an Order without penalty.
18. Supplier warrants that the sale to the Purchaser and the use by the Purchaser of the Goods or Services will not infringe any patent, trade mark, copyright, industrial design or process of manufacture or any other intellectual property. Supplier will, at Supplier’s own expense, upon demand of Purchaser, investigate and defend every such allegation, claim or action, which may be brought against Purchaser except that Supplier must not settle any claim in a way which prejudices the Purchaser without the Purchaser’s express written agreement.
19. All materials (including drawings, blueprints, specifications or samples) (Purchaser Materials), provided by or on behalf of the Purchaser in connection with an Order, are confidential to the Purchaser and shall be used solely to complete an Order, except with the prior consent in writing of the Purchaser, and shall remain the property of the Purchaser and be returned on demand. The Supplier shall not without the written prior approval of the Purchaser provide to any third party any Purchaser Materials or any Goods using any Purchaser Materials. This restriction shall continue notwithstanding termination of an Order. Where the Purchaser directs the Supplier to use or to affix to the Goods a brand, name or trade mark, or design feature, of the Purchaser or of a customer of the Purchaser, the Supplier is only authorised to use that intellectual property for the purpose of supplying the Goods to the Purchaser.
20. Supplier shall ensure that in the supply of the Goods and Services it shall comply with the Purchaser’s global code of conduct for suppliers.
21. The failure or delay of the Purchaser to exercise any right is not a waiver or variation of that right. Any waiver or variation of a right by Purchaser must be in writing by Purchaser.
22. Supplier indemnifies the Purchaser, its related bodies corporate and their respective officers, directors, employees and agents (each an O-I Indemnified Party) from and against any loss or claim, including Consequential Loss, suffered or incurred by an O-I Indemnified Party arising out of:
(a) the Supplier’s performance of, or failure to perform the requirements of, an Order;
(b) the Supplier’s negligence;
(c) the Goods or Services infringing the proprietary or other rights of any third party;
(d) any personal injury or death contributed to by Supplier’s act or omission and any personal injury or death to Supplier’s personnel and sub-contractors whilst on the Purchaser’s premises;
(e) any loss of or damage to property contributed to by the act or omission of Supplier or its personnel and sub-contractors on Purchaser’s premises; and
(f) Supplier’s breach of any applicable laws.
The Supplier’s obligation to indemnify an O-I Indemnified Party will be reduced to the extent that any negligent or wilful act or omission by such O-I Indemnified Party contributed to the loss. Each indemnity in this document is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of this document or any Order or contract made under it.
23. If there is any inconsistency between an Order and this document, the Order will prevail to the extent of the inconsistency.
24. This document shall be governed by the laws in force in the People’s Republic of China and the parties agree to submit to the exclusive jurisdiction of the courts in the place in the People’s Republic of China where O-I’s business is located.
C.) Overseas Goods
25. The Supplier shall provide the following documents for Goods manufactured outside of the People’s Republic of China:
(i) Commercial Invoices (including additional certified invoice for customs purposes);
(ii) Fumigation Certificate;
(iii) Unpriced Packing List;
(iv) 2 Copies of Insurance Certificate;
(v) Parcel Post Receipt in evidence of dispatch;
(vi) Airways Bill giving full flight details;
(vii) 2 Original Bills of Lading duly endorsed; and
(viii) 2 Non Negotiable Bills of Lading.
26. Two complete sets of all documents listed in clause 25 are to be airmailed as soon as possible after dispatch of the Goods to the Purchaser at the address indicated on the Order.
27. The Supplier must immediately notify the Purchaser in writing when Goods are packed for export outside the Supplier’s premises.